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Frequently Asked Questions
All information contained here is general answers related solely to bankruptcy
filings in the Tampa area. Anyone considering filing bankruptcy should consult
with and employ a qualified attorney specializing in bankruptcy to get
information on their specific case. The specific problems involved in your case
may result in different strategies or answers than discussed here.
To submit a proposed question, it should be a question of general interest to
the public. Use the submittal form on the bottom of this page. There is no
charge for submission of questions here, or for any answers provided, though we
may not be able to provide an answer to some questions without an appointment
depending on the complexity of the issue. All questions must show the name
of the person on whose behalf the question is submitted so we can insure we do
not have a conflict of interest.
 | What is bankruptcy?
Bankruptcy is a federal law permitting individuals, married couples, or
incorporated or unincorporated businesses to reorganize or eliminate their
debts. See the general information page
describing the different types of bankruptcy, and the property you can
retain in them (in Florida cases).
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| How should I choose an attorney?
While most chapter 7 cases are very routine, if a problem arises it can be
very important to have a good attorney representing you. Chapter 13 cases
are usually more complicated, and require more attention from the attorney
than a typical chapter 7 case. You should meet with two or more attorneys
before you decide which attorney to employ. You should find out if the
attorney you are meeting is the same attorney who will appear for you at
court and will handle you case, and if not what are the qualifications of
the other attorneys involved in your case. Also, beware of
firms that advertise under a number of different names. They may have
a bad reputation, and be trying to hide their real identity. If you
call what appear to be different firms and get the same answering service,
you should consider consulting a different firm. You also may
review lawyer information from independent sources such as
Martindale-Hubbell lawyer locator
and other
services. |
| What are the fees for bankruptcy?
The filing fee for a chapter 7 bankruptcy is $299. The filing fee for
chapter 13 is $274. I charge a retainer under either case which
varies according to how much work I anticipate to be involved in the case. If there were no recent charges on credit cards, and no other problems
likely to lead to possible problems in the case my usual fee will range
between $800 and $1,250 not including the filing fee for a chapter 7 case.
If there are potential problems the fee may be more, but I will try to
work with you to find a way to make my services affordable.
For chapter 13 most cases I will allow the majority of the fee to be paid
through the chapter 13 repayment plan, and usually only $700-1,000 would be paid
directly to me by the client. The rest of the fee, usually about
$2,2000-2,500 would be paid over 3-5 years by the trustee out of the monthly
payment sent to him. This option helps insure that the client has
funds they need immediately after the filing of the case to make
mortgage or car payments, or pay living expenses. There
is an hourly fee which could increase the total amount paid in the plan
if more work than usual is required, though most often this is due to
the client not making payments to the court on time.
We also now can order credit reports from all three credit reporting
agencies online to help insure that all creditors are listed. The
fee for these is $35 in an individual case and $70 in a joint case, and
must be paid prior to the filing of the case. We also will order some type of asset search which is
included in the fees above. If the case is a referral from a legal
aid society for which we do not charge fees, these costs will have to be
paid separately by the client.
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| Why not hire a bankruptcy petition preparer or paralegal?
There are no standards or required qualifications for bankruptcy petition
preparers or paralegals. Only attorneys are permitted to give you
legal advise, and only attorneys can represent you in court and design and
write legal documents on your behalf. There are
many bankruptcy petition preparers in the Tampa area, which very often charge
higher retainers than I do. The Courts are now entering orders requiring
many of them to appear in court to justify their fees, but the preparers often
close under one name and open in another name and at a new address and phone
number before the Court and officials can catch them. You should assume
that anyone offering to file bankruptcy for you that is not an attorney is a
scam artist. |
| What if I really cant afford an attorney?
You may see what programs are currently available from the local legal
services office. As of the last update to this (2 December 2006)
it appears some of these are still requiring attorneys fees of $550 in
addition to the filing fee even for the legal aid referrals.
Others may be making referrals to attorneys who may file for no charge.
Additionally, some attorneys, including myself, take a few cases for
no fee (pro bono). These may or may not be referred by the local
legal services office. The legal services office screens people
for income and assets to see if they qualify for free services, and if
so will refer them to a local bankruptcy attorney that works with
them. In Hillsborough and Pasco county you should contact Bay
Area Legal Services. In Polk or Hardee County contact
Florida Rural Legal Services at: Florida
Rural Legal Services - Lakeland, 963 East Memorial Boulevard,
Lakeland, FL 33801. 863.688.7376. In Hernando county contact Withlacoochee Area Legal Services at Withlacoochee Area
Legal Services Inc.
222 S.W. Broadway Street
Ocala, FL 34474-4151
(352) 629-0105 |
| What if a lawsuit is filed against me for a credit card or
other unsecured debt?
Most of the time bankruptcy will get rid of these debts, even if they
sue you, and may even if they get a judgment against you. Under
a recent change in Florida law though, it is much more important to
file before any judgment or garnishment is entered, since it may not
be possible to eliminate a garnishment on your wages even through
bankruptcy if the garnishment is entered before the bankruptcy is
filed. Also, if the judgment makes some
ruling regarding fraud or wrongful conduct; or if you own
non-homestead property on which a judgment lien may attach the
judgment may make it much more difficult or impossible to eliminate the
debt in bankruptcy. However just the
fact that you have a suit or judgment should not prevent you from
seeing a bankruptcy attorney to discuss the options. Also,
the sooner you file after a judgment, the better the chances of
eliminating the debt. |
| What if a foreclosure is filed against my home before I
file?
In Florida we can usually stop a foreclosure and give you an
opportunity to catch up the mortgage payments through a chapter 13
bankruptcy so long as we file the bankruptcy before the foreclosure
sale. If a summary judgment is entered before we file, this may
limit our ability to fight the amount owed, so it is best to file as
early as possible in the foreclosure process, or before any foreclosure
is filed. Once a summary judgment is entered, we usually will no
longer be able to fight over the amount you were behind in payments, or
the fees and costs charged by the mortgage company. Still, if you are behind on mortgage payments, you should
see an attorney as soon as possible to reduce the total fees that will
end up being paid to the mortgage company attorneys if they file a
foreclosure. If there is a balloon mortgage, ie a mortgage where
the final payment is a very large payment due within five years from
the day you file bankruptcy, be sure to bring in the mortgage papers
and point this out to the attorney as this affects what options you
have. However, balloon mortgages are still fairly rare. |
| What if my car is repossessed before I file?
Based on a decision issued June 7, 2002, if a car is repossessed
before the case is filed, we may not be able to get it back.
Therefore, if you think there is a risk of the creditors repossessing
the car, you need to see an attorney as soon as possible. |
| Can I file even if I own a business?
Yes. If the business is incorporated, then the business is a
separate entity, and it can file without you filing, or you can file
without it filing. Often, for instance if many corporate debts
are personally guaranteed, both may have to file. Generally, if
the business is incorporated and wished to keep operating, it would
need to file chapter 11. |
| If the business is not incorporated, then it is not a separate entity
and only one bankruptcy would be filed. If there is substantial
assets or value to the business I will generally recommend filing a
chapter 13 bankruptcy, which will usually allow you to keep control of
the business and keep operating it even while you reorganize your debts
in bankruptcy. |
| What should I do before the initial appointment?
Before you first meet with me or any other bankruptcy attorney you should
prepare a list of who they owe and how much they owe to this meeting. You
may wish to download and fill out my new client sheet
and my budget form. You will be asked to
review and sign the Debt
Relief Agency disclosure, the Debt Relief Agency
contract, and the Information
disclosure at the first appointment, so you should download, review, and
sign those before the appointment. These forms are all required by
the new bankruptcy law now in effect. You
should also know the make, model, and year of your car and should bring a
copy of the car loan papers if they have them. If you refinanced any
real estate within the last 3 months, bring a copy of the mortgage loan
documents. Finally, you should bring a copy of your most recent paystub. While you do not have to bring anything, all of this
information will assist in making a recommendation in your case. You should make out a list of
questions you have to ask at the appointment. You also should attempt
to obtain the following information, if you can, and bring it to the
meeting:Information Needed:
The client should attempt to
obtain the following information which counsel will require to determine what
type of bankruptcy to file, and what payments, if any, will be required to
creditors.
1). Bills and other
statements from creditors and collection agents for the last 3 months.
2). Income records for
the last 6 months (or some way to determine the average income for the last six
months).
3). If the client had
moved within the last 1215 (3 1/3 years), the client should show where they were
living during that time and the date they moved for each time the moved. A
copy of the last 4 years of tax returns may assist in showing this.
4). If the client had
purchased their homestead within the last 10 years, or in the last 10 years
either paid more than the regular monthly mortgage payment, or put other money
into the home, then the client should be able to show where that money came from
and the date of such actions.
5). As is the case under
prior law, the client should bring in copies of any lawsuit documents and copies
of current bills as well as a list of creditors and amounts owed.
6). A copy of the most recent
tax return filed by the client.
7). Photos of the rooms
in the home showing furniture in the house.
8.) Copies of any car
loan papers and the payment terms on any mortgage or lease.
9.) Some document
showing the annual property taxes and insurance on the home, if you own
a home.
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| What shouldn't I do before the initial appointment?
Do not transfer assets out of your name before you see the attorney.
This almost never does any good, and can often cause you to lose
property you otherwise would have been able to keep. Do not pay
any relatives or friends before you file, or make substantial
payments to any creditors, other than regular payments on secured
creditors before you see the attorney. |
| What shouldn't I do at the appointment?
For attorneys, time is money. While we like children, if you are spending
your time chasing after the children or trying to quiet babies instead of
listening or answering the counsel's questions, you are wasting everyone's
time. If the children will sit and draw quietly, bring them. If they will be
running about, screaming, and constantly interrupting, find a babysitter. Do
not take cell phone calls during the middle of the appointment. Do not come
and spend 10 minutes trying to remember who you owe. |
| Can I bring friends/relatives with me to the
appointment?
Due to confidentiality concerns, and to insure that the client is
not being influenced by others, we will only meet with the
individual considering filing bankruptcy at the initial meeting.
If that person is mentally incompetent, and a guardian has been
appointed, we can meet with the legal guardian. Otherwise,
only the client will initially be permitted to discuss the situation
with the attorney. Upon the client's consent, the attorney may
agree to meet with the client and others to explain the situation
after the appointment. If a married couple is
considering filing together, both may meet with the attorney for the
initial consultation. |
| What should I expect at the appointment?
All clients will be asked to review and sign the following three
forms at the commencment of the consultation. You may wish to
download and sign them before the appointment. |
Debt
Relief Agency disclosure
Debt Relief Agency
contract
Information
disclosure
| I will spend 15-45 minutes initially getting a lot of information
from you about your finances. I will then explain what options you
have and what option I recommend. You should never feel pressured to decide what to do at the
initial consultation, but should feel welcome to go home and think about it
before you employ the attorney. If you have questions or don't understand
something, you should ask questions. I understand that you have probably not
had to employ an attorney before, and bankruptcy can be quite complicated. I
expect to take the time to explain it so that you understand the options and
what you will need to do.
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| What will counsel not give advise on?
I only practice bankruptcy and bankruptcy appeals. I will not
give advise on other areas of law, other than as they relate to the
bankruptcy, or to recommend employing counsel specializing in such
areas. While most cases may involve some degree of
pre-bankruptcy financial planning, I will not give advise for
extensive pre-bankruptcy financial planning. If you have
substantial assets that are not protected in bankruptcy, and you
want to set up an investment or asset protection scheme to protect
these assets, you should employ an attorney (usually from a large
law firm) specializing in such financial planning. |
| Do I have to list all my creditors?
Everyone you owe money to on the date the bankruptcy is filed must
be listed as a creditor. You may not leave any creditors off
the list if you are liable on the debt. This includes
corporate credit cards on which the person filing is also liable.
This includes debts c0-signed for others. This includes all
debts of any nature. On the other hand, if you do not owe
money to a company (for instance a credit card this is paid off),
that company does not have to be listed. Even so, discuss the
matter with me before you pay more than $400 to pay off a credit
card prior to filing. |
| What is the procedure for filing?
I insist on personally meeting each potential client before I agree to take
the case. This appointment will usually take 30-90 minutes. If I agree to take
the case you will need to pay a $100 before I formally represent you, at which time they can
start referring creditors to our office. You do not need to pay the $100 at
the initial appointment, and do not need to decide whether or not to
employ me at that appointment. If you do employ me, I will give the clients a
questionnaire to fill out at this time, which requires listing all debts,
assets, creditor addresses, and a budget as well as some other information.
When this is returned with the balance of the fee, it will take our office
1-2 weeks to type the petition. The clients will need to come in once more
to sign the petition. The chapter 13 cases are generally filed the next
business day, chapter 7's filed within a few days. There will be a meeting of
creditors at the Federal Building about 30 days after the case is filed,
which the clients must attend. At this meeting the trustee will ask the same
sort of questions as I asked at the initial appointment, but the meeting
usually only takes about 5 minutes. In a chapter 7, this is usually the only
meeting. In a chapter 13, procedures after this are dependent on the
individual case, but will involve at least one more court hearing after the initial meeting.
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| Does it really make a difference which attorney I employ?
Lets take the example of a chapter 13 case being used to catch up on house
payments. First, most chapter 13 cases are ultimately dismissed due to
the client not being able to continue payments each month for three to five
years. How can this be helped? First, the client needs to try to
set aside a little money each month, even when it doesn't seem any is
available, so that they have money for unexpected problems like car
repairs. However, the attorney also can often help. It is often
possible to have the court rule that the payments to the trustee may be
decreased temporarily until the unexpected problem is cured. It might
be possible to change payments to other creditors depending on the
situation. Some attorneys insist on additional payment before they
will attempt any of these services. I believe that position is both
contrary to the best interest of the client and unethical under the local
bankruptcy rules issued by the court. So long as I represent the
client (which is either until the case has been completed or until the court
issues and order granting me permission to stop representation) I will file
all pleadings which I believe have a reasonable chance of success and which
accurately state the facts of the situation. |
| What about when a case has been
completed, all payments have been made for the three to five years, is
this always the end of the matter? Not necessarily. I
have seen a number of cases where even after the client did everything
they were supposed to, the mortgage company claims they still owe
thousands of dollars and threaten to start foreclosure all over again.
Usually this is based on attorneys fees not paid in the bankruptcy which
the mortgage company claims it is entitled to. My plans
specifically prohibit this type of action, by requiring the mortgage
company to include all fees in the claim they file to be paid through
the bankruptcy. |
| What problems can arise in the bankruptcy?
In chapter 7, it is rare to have any substantial problems, but
when problems arise they can be complicated. Some minor issues
that arise fairly commonly: some creditors will request that you sign a
reaffirmation agreement: that you still owe them money despite the
filing of the case. These may be credit cards offering to let you
keep using the card if you keep paying on it; or may be car or mortgage
loans requesting that you sign to remain liable on the debt whether or
not you keep the car or house. I very strongly recommend against
reaffirming on unsecured credit cards. Generally the reaffirmation
gives them the right to cancel the credit later and still sue you for
the balance owed. I may sign reaffirmations on car or mortgage
loans. |
| Lets take the example of a chapter 13 case being used to catch up on house
payments. First, most chapter 13 cases are ultimately dismissed due to
the client not being able to continue payments each month for three to five
years. How can this be helped? First, the client needs to try to
set aside a little money each month, even when it doesn't seem any is
available, so that they have money for unexpected problems like car
repairs. However, the attorney also can often help. It is often
possible to have the court rule that the payments to the trustee may be
decreased temporarily until the unexpected problem is cured. It might
be possible to change payments to other creditors depending on the
situation. Some attorneys insist on additional payment before they
will attempt any of these services. I believe that position is both
contrary to the best interest of the client and unethical under the local
bankruptcy rules issued by the court. So long as I represent the
client (which is either until the case has been completed or until the court
issues and order granting me permission to stop representation) I will file
all pleadings which I believe have a reasonable chance of success and which
accurately state the facts of the situation. |
| Another fairly common issue in chapter 7 is if you are behind on house
or car payments, the creditor will usually file a motion with the court
requesting permission to foreclose or repossess the car. If you wish
to keep the house and vehicles, you should remain current on payments when
you file chapter 7 and continually through the case. If you get
behind, the creditor may get permission to repossess or foreclose; or you
may be required to not only catch up the payments but also pay the
creditors attorneys fees. |
| If the client has more assets than they are allowed in chapter 7, the
Chapter 7 Trustee will either want to take and sell them, or sell them
back to the debtor. If you are filing before you receive your tax
refund, or toward the end of the year and are likely to receive a
substantial refund the following year, the trustee may have the right to a
portion of this refund. |
| In chapter 13 cases the most common issues are motions by the mortgage
or car companies complaining if the house or car payments are not current.
In cases filed under the new law (after October 16, 2005), the car and
house payments will by paid by the trustee out of funds you pay to the
trustee each month. |
| The usual rule is that the mortgage payments must be cured through the
chapter 13 plan over three years. If the plan takes longer than that
to catch up the arrearage, we may ask the mortgage company to consent to
an extended time to make the cure. |
| If a claim is filed for more than we think is owed, we can object to
the claim. We often object to claims of the mortgage companies
requesting a reduction in the attorneys fees they are requesting.
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| The budget filed when the case is filed may have to be updated if the
client's financial situation changes after the filing. |
| If the client is unable to make the payments required, we may be able
to amend the plan to temporarily reduce the payments until the problem is
resolved. |
| In all cases, the information you list on the bankruptcy schedules
and statements; as well as the information you disclose at the meeting
after filing is under penalty of perjury. If you lie on the forms
there is a very good chance that you will have the bankruptcy denied and
will be criminally prosecuted; and very well may go to jail. It is
absolutely critical that you are honest with me and disclose everything
required on the bankruptcy forms. It is much better to put
unnecessary information on the forms than to omit required information. |
| These are just examples of some of the issues that may arise in the
bankruptcy, and reasons to hire a competent attorney to help you in the
case. |
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