In Florida, Chapter 7 Bankruptcy is the legal procedure where the debtor’s unsecured debt is discharged after liquidating non-exempt assets. To file a Chapter 7 bankruptcy in Florida, a person must be a permanent Florida resident or own property in the state.
Florida has three bankruptcy districts (Southern District, Middle District, and Northern District), and each of Florida’s counties is assigned to one of the three bankruptcy districts. People must file bankruptcy in the district and local division where they reside.
Filing Chapter 7 bankruptcy in Florida includes the following steps:
Filing bankruptcy is not as easy as simply filling out bankruptcy forms. Some areas of bankruptcy law are most frequently the subject of debtor questions. These areas include the means test, discharge of income tax liability through bankruptcy, attorney fees, avoiding common bankruptcy mistakes, and other frequently asked questions.
Most people who file Chapter 7 bankruptcy in Florida are eligible to claim Florida bankruptcy exemptions.
In Florida bankruptcy, exemptions that apply are determined by the state where the debtor has been domiciled for the 730 days (two years) immediately preceding the filing date.
Some bankruptcy debtors who are Florida residents when they file for Chapter 7 bankruptcy are not entitled to Florida exemptions because they have not lived in Florida during the preceding two-year period. Those debtors must claim bankruptcy exemptions allowed by the state in which they were domiciled for 180 days immediately preceding the two-year period or the state in which they were domiciled for the longer portion of such 180-day period.
In other words, a person filing bankruptcy in Florida today is eligible for the property exemptions he could have claimed if he had filed two years ago.
If this person was a Florida resident two years ago, he claims Florida exemptions today; if two years ago the debtor resided in a different state, then they are entitled to the exemptions of the state of their prior residence (or federal exemptions if that state has residency requirements for the use of its exemptions).
Important: Federal bankruptcy law can invalidate exemptions over property that is converted to exempt within certain time periods before filing.
The Florida Constitution exempts a Florida homestead of unlimited value from liens and execution. A debtor may protect unlimited amounts of money invested in a homestead property. A debtor may invest money into an exempt homestead even after being sued. These homestead rules apply in state court collection proceedings. Bankruptcy law does not affect Florida’s unlimited homestead exemption in state court proceedings.
But bankruptcy law is a federal law, and federal law may supersede state law in some instances. The Florida homestead exemption is applied differently in a Chapter 7 bankruptcy than in Florida state court.
There are some value ceilings and purchase deadlines applicable to Florida’s homestead exemption in Chapter 7 bankruptcy. Under federal bankruptcy law, the debtor’s Florida homestead is exempt up to a value of approximately $160,000 (2020) unless the debtor occupied his current Florida homestead property and previous Florida homestead properties for a continuous 40-month period prior to filing bankruptcy. Joint bankruptcy debtors can protect approximately $320,000 of a jointly owned homestead. (2020) These numbers increase every so often, so debtors should get the current limits from their bankruptcy attorney. Chapter 7 bankruptcy debtors are entitled to an unlimited homestead exemption if they have occupied their Florida homestead for more than 40 months prior to filing.
Under Florida bankruptcy law, a debtor’s investment of non-exempt money in a homestead property within ten years of filing bankruptcy may be challenged by the bankruptcy trustee if the transfer was intended to defraud creditors.
A debtor initiates a Chapter 7 bankruptcy by filing a Petition with the bankruptcy court. The bankruptcy petition is a universal federal form covering substantial financial information about the debtor and his family. Debtors must sign their petitions under oath.
The bankruptcy Petition requires the debtor to list all his unsecured debts separately from his secured debts. Unsecured debts include personal loans and credit cards issued by banks, such as Visa, MasterCard, American Express, Discover, and other credit cards used to purchase consumable items. Vehicle leases, medical bills, and personal loans are also unsecured debts. Tax debt is also unsecured until the IRS issues a tax lien.
Secured debts include those debts where the creditor has a security interest in the debtor’s property to guarantee payment. Examples of secured debts include mortgages, car loans, and loans from finance companies (usually secured by household items). If a debtor has purchased goods using a store credit card, such as a card from Rooms to Go, Best Buy, etc., the store probably has a security interest in certain items purchased, making the store a secured creditor.
The debtor must indicate on the bankruptcy Petition whether they want to either reaffirm or redeem each secured debt or surrender the secured property to the secured creditor. A bankruptcy debtor is entitled to keep any secured property if the debtor continues to pay the loan for that property on time. If, however, the debtor elects to surrender the secured property, the secured creditor may not recover any money from the debtor after that.
The Chapter 7 bankruptcy debtor must list all liabilities, no matter how remote. The petition should list any claim that anyone might have against the debtor, even if the claim has not yet matured. For example, if the bankruptcy debtor is a co-debtor on a note, has personally guaranteed corporate or other debt, or is secondarily liable on a mortgage that a purchaser has assumed, the debt should be listed along with a brief explanation of the liability. Disputed debts and liabilities should also be listed. Also, if the debtor has ever had a home mortgage insured by a government agency (such as the VA), the petition must list that agency as a contingent creditor. This should be done even when someone purchased the property and assumed the mortgage since they might default, and the VA could decide to pursue a claim against the debtor.
The first step in a Chapter 7 bankruptcy is filing the petition. The filing of a Chapter 7 bankruptcy creates a bankruptcy estate. The bankruptcy estate refers to all of the debtor’s non-exempt property subject to administration by a bankruptcy trustee. A trustee is randomly appointed by the court immediately upon filing a Chapter 7 petition. The Chapter 7 trustee is usually a private attorney or CPA. The trustee’s job in Chapter 7 bankruptcy is to gather all of the debtor’s non-exempt assets, sell those assets (to either the debtor or an outside party), and distribute the proceeds among the debtor’s scheduled unsecured creditors.
Exempt assets, such as the debtor’s homestead and IRA, are not part of the bankruptcy estate, and the trustee cannot interfere with exempt assets.
An automatic stay is imposed immediately upon filing a Chapter 7 bankruptcy. The stay prohibits creditors from pursuing legal action against the debtor and stops all creditor legal collection efforts. The bankruptcy attorney can file a Suggestion of Bankruptcy in ongoing civil lawsuits involving the debtor. The suggestion of bankruptcy suspends all such litigation. Debtors need to provide their attorney with a copy of any lawsuits filed against them so that the attorney may prepare a Suggestion of Bankruptcy.
In Chapter 7 bankruptcy cases, mortgage creditors typically file a Motion for Relief From Automatic Stay so that they may foreclose on the secured property if the debtor does not make payments on time. The bankruptcy court will usually grant this motion. The creditor can take the bankruptcy debtor’s property only if the debtor does not pay secured loans on time and only after the creditor forecloses its lien in state court.
The Florida bankruptcy means test is a complex formula to determine eligibility to file for Chapter 7 bankruptcy. Debtors whose household income is under their state’s median income, and debtors whose debts are primarily business-related, are exempt from means test qualification. Bankruptcy debtors whose gross household income is above median income must pass the means test to file for Chapter 7 bankruptcy.
The bankruptcy court will schedule a meeting with an appointed Chapter 7 trustee. This meeting is called the creditors’ meeting or the 341 meeting. The meeting is held in a conference room, not a courtroom. Typically, this meeting will last ten to fifteen minutes.
A representative of the U.S. Trustee’s office (a different trustee) sometimes attends these meetings. The debtor and his bankruptcy attorney must attend the creditors’ meeting (if filing jointly, both spouses must attend). As a practical matter, very few, if any, unsecured creditors attend. The Chapter 7 bankruptcy trustee represents all creditors whether or not unsecured creditors attend the meeting of creditors.
The Chapter 7 bankruptcy trustee asks the debtor questions at the creditors’ meeting, but they will not interrogate, cross-examine, or threaten the debtor. The trustee may ask the debtor why they filed for bankruptcy and ask questions about their assets and sources of income. The trustee often asks about the debtor’s income and expenses to make sure the debtor qualifies for Chapter 7 bankruptcy and that the bankruptcy is not an abusive filing.
The court schedules creditors’ meetings based on the trustee’s schedule. Your bankruptcy attorney is not able to request a meeting date or time. If the debtor or their attorney cannot attend the scheduled 341 meeting, the trustee usually schedules a “make-up” meeting approximately two weeks after the first date. If the debtor fails to attend the second meeting, the trustee may move to have the bankruptcy dismissed.
The Chapter 7 bankruptcy trustee has 30 days after the conclusion of the creditors’ meeting to object to any exemption of property the debtor has claimed on the bankruptcy Petition.
If the trustee objects to a claimed exemption, the court will set a hearing at which time the debtor has the opportunity to support the exemption. Absent a trustee objection within 30 days after the filing date, all property the debtor claimed as exempt on the petition, including homestead, is exempted in bankruptcy and is not part of the bankruptcy estate.
If a creditor believes its debt should not be discharged, it may file “an adversary” case during the bankruptcy proceeding. The most common ground for a creditor filing an adversary case is fraud.
Fraud in this context is not criminal. In this context, “fraud” means that the debtor abused his relationship with the creditor and the bankruptcy process. Fraud supporting a creditors discharge objection could, for example, refer to a bankruptcy debtor who used a credit card to buy the property or take cash advances prior to filing bankruptcy when the debtor was financially insolvent.
If a debtor incurred a debt when the debtor planned to file bankruptcy, the creditor could have a basis to set aside a discharge of that debt for fraud during an adversary case.
A Chapter 7 debtor must file, within 60 days of the 341 meeting, a reaffirmation agreement for all secured property, such as cars, the debtor wants to retain. Suppose the debtor does not sign the reaffirmation agreement or redeem the property within 60 days. In that case, the automatic stay is lifted as to that property, and the creditor is permitted to repossess the property, even if the debtor’s payments are current.
A reaffirmation agreement states that the debtor agrees to remain personally liable to pay the debt after the bankruptcy is over. If the debtor does not sign a reaffirmation, the Chapter 7 bankruptcy will wipe out the debt, but the secured creditor can take the secured property.
The debtor’s bankruptcy attorney will usually co-sign a reaffirmation agreement if the attorney believes the debtor has sufficient disposable income to pay the secured debt after the bankruptcy is concluded. The attorney may choose not to sign a reaffirmation agreement if the debtor has negative disposable income or if the attorney believes the debtor’s reaffirmation of the liability would create an undue hardship.
Suppose the bankruptcy attorney disapproves and co-signs a reaffirmation agreement. In that case, the Florida bankruptcy judge will review the reaffirmation agreement and either approve or deny the agreement, sometimes after an evidentiary hearing. The bankruptcy judge will deny reaffirmation if he believes that reaffirmation is not in the debtor’s best interest for a “fresh start.”
Even if the court refuses to approve a debtor’s reaffirmation, many creditors will let the bankruptcy debtor keep the secured property as long as payments are current.
Redemption is how a debtor can keep their car in bankruptcy. Chapter 7 bankruptcy gives debtors a different option regarding loans secured by personal property. The debtor may “redeem” secured personal property such as furniture, computers, automobiles, or other property purchased on credit and secured by a lien in favor of the creditor.
Redemption means purchasing the property from the secured creditor at its current fair market value. Redemption can be financially beneficial for the debtor when the property’s fair market value is less than the amount due under the loan.
An executory contract is a legal term referring to a contractual agreement that both parties are obligated to perform in consideration for a benefit (such as a car lease or a residential lease). Executory contracts do not include “at-will” contracts such as an employment agreement or a personal service contract.
Chapter 7 bankruptcy permits the debtor, or the trustee, to assume or reject an executory contract. A debtor must decide if they want to remain bound by their executory contracts prior to the court’s issuance of a bankruptcy discharge which usually happens about 90 days after filing.
A car lease is an example of an executory contract. If the debtor rejects a car lease, they surrender the car to the leasing company and have no further personal liability. If the debtor wants to assume the lease, they can keep the property if they make the lease payments. If the debtor subsequently defaults on lease payments, the leasing company can take back the car.
Assumption of an executory contract is not the same as a reaffirmation of the lease, so the leasing company may not sue the debtor for the balance of payments due under the lease following default.
Student loans are not dischargeable in Chapter 7 bankruptcy unless the debtor can demonstrate that loan payments impose “undue hardship.” To eliminate a student loan under the “undue hardship exception,” the debtor must file a separate motion with the bankruptcy court and appear before the bankruptcy judge with evidence of hardship. As a practical matter, it is difficult for bankruptcy debtors to demonstrate undue hardship unless they are physically unable to work.
Most bankruptcy courts use the Brunner test in determining hardship. Under this test, to discharge student loans in bankruptcy, the debtor must show:
The bankruptcy discharge is the legal process that wipes out a debtor’s legal liability to pay unsecured creditors. Creditors of debts that have been discharged in bankruptcy can never again try to collect debts the debtor had incurred prior to filing bankruptcy. A debtor may sue a creditor for damages and sanctions if the creditor attempts to collect a debt after the debtor’s bankruptcy discharge has been entered.
It will take anywhere from 1 to 2 years to build back credit for most people. After that timeframe, most people can get a new loan, such as a home loan mortgage. Credit card applications will come even earlier.
At Kaba Law Group, P.L.L.C., our lawyers have the professional skills, legal knowledge, and trial experience that you can trust and rely on for results.
If you are in need of legal representation in a Chapter 7 Bankruptcy matter, Kaba Law Group and our Miami Dade County Chapter 7 Bankruptcy lawyers have the legal experience and dedication you need to represent you. We will help you determine who was at fault and hold them accountable for compensating you for the total value of your damages, plus attorney’s fees when applicable. We help you get the compensation that you deserve!
Call us today at (305)-245-9990 or schedule an free appointment online https://kabalaw.cliogrow.com/book, fully private, and confidential consultation and learn more about how we can help.
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