Frequently Asked Questions about Bankruptcy
Is Bankruptcy is difficult?
While there are many rules in bankruptcy and the process may seem confusing, it is not so difficult that you should avoid the benefits bankruptcy can afford you. If you have competent lawyers representing you, the process should be straight forward for most consumers.
Why do I need an attorney to file for bankruptcy?
Bankruptcy is governed by very complex laws and rigid rules. For those reasons, only an experienced bankruptcy attorney can provide you with competent advice to help you through the detailed maze of the bankruptcy process. Many paralegal companies advertise bankruptcy services at a discount. However these companies are prohibited from rendering legal advice and can not represent you in court.
Will I lose my assets?
Because of several exemptions built into the bankruptcy law, most people who file for bankruptcy protection do not lose any property at all. However, you must disclose all of your assets to your attorney before we can be sure that you are entitled to keep all of your possessions even after bankruptcy.
Will I ever get credit again?
Many people fear that bankruptcy will have a negative impact on their ability to borrow. However, you must consider your whole credit picture. By the time somebody files a bankruptcy, his or her credit report is usually already derogatory. The bankruptcy cleans up past problems and allows you to start building your credit again.
If you have income, it is often possible to get credit cards and car loans shortly after your case is closed. It is even possible to get a home mortgage one year after your bankruptcy. Many people would be unable to obtain this credit without getting rid of their old debt by filing for bankruptcy. In many cases, clients report having an easier time obtaining credit after the bankruptcy eliminated all of their debt. We will assist you in repairing your credit so that you are able to obtain credit cards, a new home or vehicle.
Will I ever be able to buy a home after bankruptcy?
It is possible to get a home mortgage one year after bankruptcy. Moreover, FHA rules allow you to become eligible for a standard favorable rate two years after bankruptcy. We will assist you in obtaining the financing to purchase a home.
Will I lose my pension, retirement plan, Ira or 401(k)?
In most cases, these assets are exempt and protected. This means that you can keep your pension, retirement plan and 401k.
Will I lose my job?
Employers do not find out about the bankruptcy in most cases, unless you choose to tell them. In addition, federal laws prohibit employers from firing someone or taking adverse action for filing bankruptcy.
Can I file with my spouse?
If you are jointly liable for the debt, then we will recommend you file together.
Will my bankruptcy hurt my spouse’s credit?
When one spouse files for bankruptcy protection, his or her spouse is generally not affected.
Can bankruptcy help me if I owe taxes?
It is true that some taxes may be discharged and completely wiped out. However, several rules and criteria must be considered, which an attorney can explain to you.
How long does a bankruptcy take?
The total time for a straight bankruptcy is generally less than four months. However, the debtor receives the benefit of bankruptcy protection immediately after the case filed. This means that creditors are not allowed to attempt to collect any debts from the debtor. The harassing phone calls, letters from creditors, late notices, bills, garnishments, lawsuits and foreclosure can end immediately.
Does bankruptcy wipe out all types of debts?
Certain debts are not wiped out by bankruptcy. The common non-dischargeable debts include alimony, child support, student loans, debts incurred while under the influence of alcohol or drugs, and some taxes.
Who will find out about my bankruptcy?
The only parties that receive notice of the bankruptcy are the creditors, the bankruptcy court and the Internal Revenue Service. However, bankruptcy is public record so anyone who wants to find out could determine that you have filed if they specifically search for your name.
What happens when a bankruptcy petition is filed?
The commencement of a bankruptcy case creates an “estate.” The estate technically becomes the temporary legal owner of all of the Debtor’s property. The estate consists of all legal or equitable interests of the Debtor in property as of the date the case is filed, including property owned or held by another person if the Debtor has an interest in the property. Section 362 of the Bankruptcy Code governs the applicability of the “automatic stay” to the facts and circumstances of your bankruptcy case. If it applies, it prohibits creditors from taking collection action against the Debtor or the Debtor’s property without Bankruptcy Court approval. The Court issues a notice of commencement advising all interested parties of the filing of the bankruptcy case. This notice provides the case number, trustee, date of the meeting of creditors, deadline to file a proof of claim (if applicable), and deadline to file an objection to the discharge (if applicable).
What chapter is right for me?
Your decision whether to file bankruptcy and under which chapter to file depends on your particular circumstances. In general, Chapter 7 is appropriate when the Debtor has insufficient income to pay a portion of his/her debts, and the Debtor is not seeking to keep non-exempt property. Otherwise, if the Debtor has an income or property and can afford to repay at least some of his/her debts, Chapter 11, 12 or 13 may be appropriate, depending on whether the Debtor is an individual, partnership, corporation, or family farmer. The decision whether to file a bankruptcy case and under which chapter is an extremely important decision and has tremendous financial impact. Consequently, this decision may require expert advice from a bankruptcy attorney. Our office will be able to determine the best option for your situation.
What is the difference between a chapter 7, 13 and 11?
Chapter 7 – In a Chapter 7, Debtors are permitted to retain certain “exempt” property, while the remaining assets are liquidated by the trustee. The trustee will distribute the funds from the liquidation to holders of claims (creditors) in accordance with the provisions of the Bankruptcy Code. Accordingly, potential Debtors should realize that the filing of a petition under chapter 7 might result in the loss of non-exempt property.
Chapter 13 – Chapter 13 is designed for individuals with regular income to repay a portion or all of their debt over an extended period of time. Chapter 13 may be appropriate for Debtors who seek to retain certain assets through a repayment plan.
Chapter 11 – Chapter 11 allows corporations, partnerships, and certain individuals who do not qualify under Chapter 13, to reorganize without having to liquidate all assets. As in a Chapter 13, the Debtor (called the “debtor-in-possession” because a trustee is not normally assigned) is required to present a repayment plan. If the plan is accepted by the creditors and subsequently approved (“confirmed”) by the Court, this allows the Debtor to reorganize his/her/or its personal, financial, or business affairs.
When do I receive a discharge of my debts?
The Notice of the Section §341 Meeting of Creditors reflects a date by which all complaints objecting to discharge or dischargeability of debts must be filed. If the debtor has complied with all of the filing requirements, paid the filing fee in full and pursuant to section 727(a) (10) completed an instructional course concerning personal financial management, and has filed the proper certification reflecting completion, your discharge will be entered in due course after the expiration of the date stated earlier.
What debts are dischargeable?
Generally, all debts listed on the petition are dischargeable. However, certain types of debt listed in 11 U.S.C. §523 are not dischargeable. The non-dischargeable debts listed in §523 include, but are not limited to:
a. Certain taxes and fines;
b. Debts arising from certain fraudulent conduct;
c. Debts not listed in your bankruptcy petition;
d. Alimony, child maintenance or support, and certain other related debts arising out of a divorce decree or separation agreement;
e. Debts caused by the Debtor’s willful and malicious injury to another;
f. Government guaranteed student loans;
g. Debts caused by a death or personal injury related to your operation of a motor vehicle while intoxicated; and
h. Post-bankruptcy condominium or cooperative owner’s association fees.
This list includes only examples of non-dischargeable debts; see 11 U.S.C. § 523 for a complete list. Under § 523, a creditor or party in interest may also file a complaint to have their debt declared nondischargeable.
In a chapter 13 case, the discharge is broader under 11 U.S.C. § 1328(a).
For more information on discharges under chapters 7 & 13 click here: General Information.
What is a bankruptcy discharge?
It releases the Debtor from personal liability for discharged debts. Thus, it prevents the creditors owed those debts from taking any action against the Debtor to collect the debts. Most, but not all, types of debts are discharged if they existed on the date the bankruptcy case was filed and were listed on the schedules. Some of the debts that are not discharged are discussed in question 15. Bankruptcy law regarding the scope of a discharge is complex, and Debtors should consult competent legal counsel prior to filing.
How do I obtain a copy of my discharge?
You can obtain a copy from the Clerk’s Office by either coming in person or sending in a written request. There is a per page charge. Payment must be in the exact amount payable either by money order or cashier’s check. You must include a self-addressed, stamped envelope.
How do I obtain information about a case?
You can visit the courthouse and view a file between the hours of 8:30am and 4:00pm, Monday through Friday. You can also access information for the Middle District of Florida, toll-free at 1-866-222-8029 # 91. Information about a case may be obtained by providing the Debtor’s social security or tax identification number or the Debtor’s name. The following information is available: whether a case has been filed, when it was filed and under which chapter, the judge assigned to the case, Debtor’s attorney and phone number, trustee and phone number, and date and time of the meeting of creditors required under Section 341 of the Bankruptcy Code. For further information on the VCIS, click here Voice Case Information System.
What is a 341 meeting?
This meeting is referred to as the “meeting of creditors.” All creditors are notified so that they may attend, but their attendance is not required. Debtors have a duty to appear and testify under oath and answer questions by creditors. This meeting is presided over by the trustee assigned to the case and is held approximately 40 days after the petition is filed. Debtors are required to provide photo identification and proof of social security number to the assigned trustee. A Debtor’s failure to appear may result in dismissal of the case. If a continuance or change in the hearing date is sought, the trustee assigned to the case must be contacted. During the COVID era these appearances may be held telephonically and the Debtor may not be required to physically appear.
How long does a bankruptcy filing remain on my credit report?
A maximum of ten years under provisions of the Fair Credit Reporting Act.
How do I get a bankruptcy filing removed from my credit report?
The Bankruptcy Court has no jurisdiction over credit reporting agencies. The Fair Credit Reporting Act, 6 U.S.C. § 605, is the law that controls credit-reporting agencies. The law states that credit reporting agencies may not report a bankruptcy case on a person’s credit report after ten years from the date the bankruptcy case is filed. You may contact the Federal Trade Commission, Bureau of Consumer Protection, Education Division, Washington, D.C. 20580; their phone number is (202) 326-2222. That agency can provide further information on reestablishing credit and addressing credit problems. You can also directly contact the credit bureau(s) reporting the information – e.g., Equifax, Experian, and TransUnion.
What can I do if a creditor keeps trying to collect money after I have filed bankruptcy?
You should immediately notify the creditor in writing that you have filed bankruptcy, and provide them with the case name, case number, and filing date, or a copy of the petition that shows it was filed. If a creditor continues to attempt to collect, the Debtor may be entitled to take legal action against the creditor to obtain a specific order from the court prohibiting the creditor from taking further collection action. However, a formal motion must be filed, in accordance with the Bankruptcy Code and applicable Rules. If the creditor is willfully violating the automatic stay, the Court can hold the creditor in contempt of court and fine the creditor. Any such legal action brought against the creditor will be complex and will normally dictate representation by a qualified bankruptcy attorney. Contact our office immediately so that we are able to resolve any of these issues.
What is a reaffirmation agreement?
A reaffirmation agreement is an agreement between the Debtor and a creditor that the Debtor will pay all or a portion of the money owed, even though the Debtor has filed bankruptcy. In return, the creditor promises that, as long as payments are made, the creditor will not repossess or take back its collateral. This means that the Debtor will remain personally liable on that debt.
How do I obtain copies or certified copies of documents?
Copies may be obtained directly from the Court for a per page fee as well as certified copies for a per page fee and a certification fee (click here to view fees).
Files that are no longer housed in our courthouse facilities are archived at the Archive Center in Ellenwood, Georgia to retrieve files through the mail; the requestor must include the case name, case number, and search fee for the archived information. Click here to view fee.
However, there is no charge for this information to customers who come to the Clerk’s office. The Clerk’s office will first verify the case was filed in that particular division. The clerk’s office will then provide the “Request for Bankruptcy Case File” form, with the accession number, box number, and location number. Once you receive this information, you may contact the Archive Center in Atlanta, Georgia, for copies. The telephone number for the center is (404) 763-7474, fax number is (404) 763-7815, and their website is: National Archives Center. Please note that the Archive Center requires a fee for this service.