Robert N Zimmerman, Jr.
Personal injury and consumer bankruptcy
Brief Comments on Consumer Bankruptcy
WHY FILE FOR BANKRUPTCY
There may be an objective in mind, such as stopping a foreclosure or other creditor collection efforts. Filing a bankruptcy may bring some instant relief by way of the automatic stay.
THE AUTOMATIC STAY
The law imposes an automatic stay that stops most all collection efforts while the bankruptcy case is pending. As the name implies, the stay is automatic and comes into existence immediately upon filing the petition for bankruptcy.
The Automatic Stay in Bankruptcy May Stop:
•Creditor Phone Calls
•Acts to perfect a lien
•Driver's license suspension under FL. financial responsibility law.
Use of this site is not intended to create an attorney client relationship.
With an indiviual consumer debtor, we first determine the correct chapter under which to file. There are debt limits that apply to a Chapter 13. Assuming no debt limit problem, the Means Test is usually the next step. The Means Test lets us know if a presumption of abuse would arise if a Chapter 7 is filed. If a Chapter 13 is to be filed the Means Test tells us how many months the Chapter 13 plan should be and how much should be paid into the plan for the unsecured creditors.
STARTING A BANKRUPTCY CASE
A bankruptcy case is started by filing the correct forms in a U.S. Bankruptcy Court. There will be a filing fee issue with the court and before filing a consumer debtor must complete a pre-bankruptcy briefing. A certificate of completion is issued that can be filed with the other forms which will show that the debtor met the requirement. The briefing can usually be completed on the internet or by phone. A service provider can be found by checking with the U.S. Bankruptcy Court where the individual is going to file the bankruptcy petition. If a Chapter 7 or Chapter 13 Bankruptcy Petition is filed, a Trustee will be assigned to the case.
An important function of a Trustee is to administer the bankruptcy estate. In a Chapter 7, that means liquidating the non-exempt assets, if any, and paying creditors their share. In a Chapter 13, the Trustee collects the Chapter 13 Plan payments and distributes the funds to the creditors pursuant to a confirmed plan.
The Trustees do have other functions and may file various motions in the case. The Trustees working the cases in the Tampa Division are, in my opinion, good people and they try to be fair. But they have a job to do and their view of what should be done may be different from the Petitioner's view. Consequently, a Trustee in bankruptcy can be like a built-in adversary. An attorney or lawyer with experience may be able to resolve issues with the Trustee and more importantly, may be able to prevent issues from arising in the case.
A section 341 meeting of the creditors will take place. The Petitioner must attend. However, commercial creditors often do not attend.
A discharge in bankruptcy terminates the legal obligation to pay the debts that are discharged. It also prevents creditors from making any attempts to collect discharged debts. However, liens are not discharged.It is only the personal obligation to pay that may be discharged.
If you are considering arranging your affairs before filing a bankruptcy petition, consult with a lawyer that deals with bankruptcy issues on a regular basis. Mistakes can be costly and may exceed the fees charged by lawyers. What may seem as good bankruptcy planning by one may be called bankruptcy fraud by another.
A lawyer, admitted to practice in the Bankruptcy Court where you file, can represent you in court and at the meeting of the creditors. A non-lawyer bankruptcy petition preparer can not represent you.
The author of this website is a lawyer licensed to practice in the state of Florida and the U.S. District Court, Middle District of Florida. It is against the law and unethical to provide legal advice or otherwise practice law in a venue where the attorney is not licensed. All of the bankruptcy information contained in this website is provided for educational purposes only. Please bear in mind that state law effects bankruptcy issues. General education helps people understand bankruptcy but it is not a substitute for legal advice by a competent attorney licensed in the state and the Court where a person files bankruptcy. Further, not all Bankruptcy Courts interpret the U.S. Bankruptcy Code the same way. Consequently, counsel familiar with the court where the petition is filed in is very important.
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