Tampa Bankruptcy Attorney https://lawgina.com Gina Rosato Law Firm, PA Fri, 18 Nov 2022 20:56:37 +0000 en-US hourly 1 https://wordpress.org/?v=6.1.1 https://lawgina.com/wp-content/uploads/2020/09/favicon.ico Tampa Bankruptcy Attorney https://lawgina.com 32 32 Can my RV or Boat be considered homestead in my bankruptcy?    https://lawgina.com/homestead-and-bankruptcy/can-my-rv-or-boat-be-considered-homestead-in-my-bankruptcy/ https://lawgina.com/homestead-and-bankruptcy/can-my-rv-or-boat-be-considered-homestead-in-my-bankruptcy/#respond Fri, 18 Nov 2022 20:56:29 +0000 https://lawgina.com/?p=51897 With home ownership and rental costs on the increase, many people are choosing alternatives such as residing in a mobile home, RV or houseboat.  When it comes to filing for bankruptcy we always need to analyze if your property is exempt from the trustee.  Ordinarily anything recreational such as an RV, boat, jetski, etc. would […]

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With home ownership and rental costs on the increase, many people are choosing alternatives such as residing in a mobile home, RV or houseboat.  When it comes to filing for bankruptcy we always need to analyze if your property is exempt from the trustee.  Ordinarily anything recreational such as an RV, boat, jetski, etc. would be considered a luxury item that would not be exempt.

Florida law has established certain criteria for determining if an RV or boat qualifies as homestead.  There is a six-prong test used by the courts to determine the abode is exempt:

  1. Debtor’s intent to make a non-traditional abode his homestead.
  2. Whether the debtor has no other residence.
  3. Whether evidence establishes continuous habitation.   Are you going back and forth between a house up north then coming back and using the RV temporarily or is it a permanent home?
  4. Whether the debtor maintains a possessory right associated with the land establishing a physical presence.  For example, renting a lot to keep the RV parked.
  5. Whether the non-traditional abode has been physically maintained to allow long-term habitation verses mobility.  Is the RV taken on vacations or is it parked and set up with utilities.?
  6. Whether the physical configuration of the abode permits habilitation.  If it is set up for full-time use for example, it has a bathroom, kitchen, etc.

Florida has a specific exemption for mobile homes.  Please reach out if there is any question on whether your property is exempt.

 

 

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Are my divorce settlement funds exempt in bankrupty? https://lawgina.com/divorce-settlement-funds/are-my-divorce-settlement-funds-exempt-in-bankrupty/ https://lawgina.com/divorce-settlement-funds/are-my-divorce-settlement-funds-exempt-in-bankrupty/#respond Mon, 31 Oct 2022 09:22:44 +0000 https://lawgina.com/?p=51891 Divorce settlement funds are only exempt if used for a limited purpose of reinvesting those funds into another homestead. Let’s say for example there is a martial home.  One spouse moves out and the other spouse stays in the home.  Both spouses are on the deed to the property. The divorce is pending.  No settlement […]

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Divorce settlement funds are only exempt if used for a limited purpose of reinvesting those funds into another homestead. Let’s say for example there is a martial home.  One spouse moves out and the other spouse stays in the home.  Both spouses are on the deed to the property.

The divorce is pending.  No settlement has been reached.  Property is not yet for sale.  The spouse living in the house can file for bankruptcy and exempt the home as homestead.  They would need the permission of the court to sell it while the bankruptcy is pending.  Ordinarily the proceeds of the home sale would be exempt as homestead, provided that those funds are segregated and used only to purchase another home.

This must be done within a reasonable period time, typically within one year. If part of those funds are used to pay bills, pay creditors, or pay rent until he/she finds a house the remaining proceeds would not be exempt.  There is no specific exemption for property settlement funds received from a divorce if they are not used for a home.  If the spouse who is not living in the home wants to file for bankruptcy while the divorce is pending, the home would not be exempt because he/she is not residing in the home.  You must be residing in the home for the homestead exemption to apply.

If you have any question as to whether you should file your bankruptcy case before or after your divorce and how property transfers will be viewed by the trustee its best to consult with our office.

 

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Will bankruptcy help me lower my car’s interest rate?  https://lawgina.com/car-interest-rate/will-bankruptcy-help-me-lower-my-cars-interest-rate/ https://lawgina.com/car-interest-rate/will-bankruptcy-help-me-lower-my-cars-interest-rate/#respond Mon, 24 Oct 2022 00:56:16 +0000 https://lawgina.com/?p=51889 The short answer to that question is sometimes.  You cannot lower your interest rate in a Chapter 7. If your vehicle is underwater or has no equity you have the option to surrender the vehicle to the lender and find another vehicle.  There is also another option called redemption which allows you to file a […]

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The short answer to that question is sometimes.  You cannot lower your interest rate in a Chapter 7.

If your vehicle is underwater or has no equity you have the option to surrender the vehicle to the lender and find another vehicle.  There is also another option called redemption which allows you to file a motion to reduce the principal balance.  For example, if you owe the lender $50,000 and your vehicle is worth $35,000 you can reduce the principal balance to $35,000 and refinance with another company.

In a Chapter 13, this is called a “cram down”.  However, you would need to have owned the vehicle over 910 days prior to filing bankruptcy to be eligible for a “cram down”. A Chapter 13 will allow you to lower your vehicle’s interest rate.  This is only a practical solution if you need to file a Chapter 13 for other reasons – like you are paying back mortgage arrears or you’re over the income threshold to file a Chapter 7.

You can also file a motion to value secured property to reduce the interest rate.  The interest rate used is called the “till” rate .  It’s usually 1% higher than the federal prime rate to account for a possible default.  If the federal prime rate is 6.25% then till rate would be a least 7.25%.

There is also a trustee fee of 10% , so unless the federal prime interest rates are very low or you are paying a very exorbitant interest rate, its usually cost prohibitive.

Mailing Address:  8870 N. Himes Avenue #629, Tampa, FL 33614

Physical Address:  4124 W. Linebaugh Avenue, Tampa, FL 33624

Direct Line:  (813) 463-8000

Fax:      (855) 529-4462

E-mailgina@lawgina.com

 

 

 

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Are my taxes dischargeable in bankruptcy?  https://lawgina.com/tax-debt/are-my-taxes-dischargeable-in-bankruptcy/ https://lawgina.com/tax-debt/are-my-taxes-dischargeable-in-bankruptcy/#respond Fri, 30 Sep 2022 12:32:00 +0000 https://lawgina.com/?p=51885 There are three types of tax debt.  The first type is unsecured priority tax debt which is not dischargeable in bankruptcy. That includes recent tax debt within the last three years. The second type is unsecured non-priority tax debt.  This type of tax debt is dischargeable in bankruptcy.  This would include tax debt for returns […]

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There are three types of tax debt.  The first type is unsecured priority tax debt which is not dischargeable in bankruptcy. That includes recent tax debt within the last three years.

The second type is unsecured non-priority tax debt.  This type of tax debt is dischargeable in bankruptcy.  This would include tax debt for returns that were due and filed over three years ago or assessed by the IRS over 240 days prior to filing your bankruptcy case. We can verify the date the tax got assessed by the IRS if you obtain an account transcript.

Interestingly, there are times when the tax return was timely filed over three years ago, but the IRS assesses the tax liability years later.  This often occurs during an audit where additional tax debt is assessed.

Tax debt will not be dischargeable if the taxes haven’t been timely filed or filed within two years of filing for bankruptcy.  Fraud or tax evasion would also be grounds for having your debt be non-dischargeable.

The third type of tax debt is secured tax debt where the IRS files a lien against your property. This occurs less frequently. We recommend contacting the IRS Insolvency Unit approximately 60 days after receiving your discharge to confirm that your tax debt is discharged.

We have clients who move here from other states who are behind on their state income tax.  Fortunately, we don’t see this issue too often since Florida has no state income tax.

State income tax essentially follows the same rules as federal income taxes in terms of whether those taxes would be dischargeable or not in a bankruptcy. If you have specific questions about your outstanding tax debt, feel free to contact my office.

 

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What documents do I need to produce when I file for bankruptcy?  https://lawgina.com/uncategorized/what-documents-do-i-need-to-produce-when-i-file-for-bankruptcy/ https://lawgina.com/uncategorized/what-documents-do-i-need-to-produce-when-i-file-for-bankruptcy/#respond Fri, 23 Sep 2022 16:09:00 +0000 https://lawgina.com/?p=51882 It is quite a bit of work for both the client and our office to make sure we have all the proper documentation to analyze your case and prepare the bankruptcy petition.  The bankruptcy petition is not a “simple” or “basic” form.  Clients are surprised to learn that the petition is between 50-60 pages. It […]

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It is quite a bit of work for both the client and our office to make sure we have all the proper documentation to analyze your case and prepare the bankruptcy petition.  The bankruptcy petition is not a “simple” or “basic” form.  Clients are surprised to learn that the petition is between 50-60 pages. It has to be filled out accurately and completely.

There is a burden on both you as the client, as well as myself, as the attorney to do our due diligence to make sure we do not miss any information.  We need six months of payroll, or if self-employed, you would need to provide six months of profit and loss statements by month; two years of income tax returns; two years of corporate returns if you own a business; vehicle titles and/or car registrations; identification, three months minimum of all bank statements for every account, including retirement accounts such as IRAs, ESOP plans, FRS plans if working for the government.

If you are on social security we need the social security benefits letter confirming your monthly payment.  The same is true for pensions, annuities, or veterans benefits to confirm the amount of your monthly payment.  Additional information that we may need to review are: a martial settlement agreement if you have been divorced within the last two years, payoff statements for your mortgage and vehicles, paperwork for any lawsuits, deeds to any real property, trust documents, HUD or bill of sale for any home or vehicle sales or trade ins for the last two years.

We also need information regarding the value of all of your assets and we go through questions also to make sure you are an eligible bankruptcy candidate.  That is why people hire an attorney. It can definitely be a daunting task without help.  There are many aspects of analysis to evaluate if you have non-exempt property, is there anything the trustee could make you pay back such as insider payments to family members, or friends.  Having legal guidance will prove to be valuable and make the process go much more smoothly.

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What is a 2004 Exam? https://lawgina.com/2004-exam/what-is-a-2004-exam/ https://lawgina.com/2004-exam/what-is-a-2004-exam/#respond Wed, 31 Aug 2022 21:25:17 +0000 https://lawgina.com/?p=51874 A 2004 exam is something you do not want to happen in your case.  This is not to be confused with a 341 hearing.  A 341 hearing is a 10–15 minute hearing that happens in every bankruptcy case where the trustee asks you questions and clarifies information listed in your petition.  A 2004 exam is […]

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A 2004 exam is something you do not want to happen in your case.  This is not to be confused with a 341 hearing.  A 341 hearing is a 10–15 minute hearing that happens in every bankruptcy case where the trustee asks you questions and clarifies information listed in your petition.  A 2004 exam is more like a deposition where any interested party can compel your testimony (deposition) or force production of additional documents.

Typically, this is something that would be initiated by the United States Trustee’s office/Department of Justice in cases where they suspect a debtor has not filed their case in good faith, is hiding assets or income, or did not properly disclose information on their bankruptcy schedules.  Once the additional information, such as bank statements, are obtained, you will likely be examined under oath.

The scope is broad. It is very important to always disclose all information to your attorney so they can properly advise you on whether filing bankruptcy is a good course of action or if the timing or circumstances of the filing are ideal.  You do not want your attorney surprised with facts after your case is filed.  Unlike regular civil state court actions, if the plaintiff no longer wants to pursue their case, they can just dismiss it.

You cannot “dismiss” or get out of a Chapter 7 bankruptcy once it is filed.  Once it is filed, its filed and there is no turning back. Your then required to participate.  If there is a finding of fraud or lack of good faith, it usually results in one of the following: 1) converting your case to a Chapter 13;  2) paying more money to the bankruptcy estate; 3) being permanently ineligible for a discharge; or 4) having your case dismissed where you are barred from refiling your case for a designated period of time.

While these situations are not routine, every case should be filed by your attorney with the attention to detail required as if it is getting audited. That is why communication and disclosure are so essential between client and attorney.

 

 

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Will bankruptcy get rid of my solar panel debt?  https://lawgina.com/solar-panel-debt/will-bankruptcy-get-rid-of-my-solar-panel-debt/ https://lawgina.com/solar-panel-debt/will-bankruptcy-get-rid-of-my-solar-panel-debt/#respond Wed, 24 Aug 2022 16:25:40 +0000 https://lawgina.com/?p=51871 Many people in Florida get solicited and opt to install solar panels in their home to reduce their electric bills.  It’s not uncommon for the cost of the solar panels to be in the $30,000 range with relatively high interest rates. The contracts usually last for 20 years.   With interest, the solar panels end up […]

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Many people in Florida get solicited and opt to install solar panels in their home to reduce their electric bills.  It’s not uncommon for the cost of the solar panels to be in the $30,000 range with relatively high interest rates.

The contracts usually last for 20 years.   With interest, the solar panels end up costing closer to $40,000 once its paid in full.  So, it’s not a small investment.  There are a lot of customers who end up having buyers’ remorse after that purchase.

Most of the solar panel companies will file what is called a UCC (Uniform Commercial Code) statement with the secretary of state to notify other creditors that there is a secured lien on their property.  It creates a lien against the collateral so if your home is sold, their lien gets paid off.  It also ensures that their collateral is not sold or not used as collateral for another loan. They typically use language in their financial statement that protects the rooftop solar panels, batteries, cables, wires, support brackets, and ground mounted racking systems and secures the solar system only.

If you no longer want the solar panels, then bankruptcy will afford you some options. You can surrender the solar panels and system and see if the company will come and remove them.  Another option would be to see if they send a reaffirmation agreement and try to renegotiate the terms of the loan.  Alternatively a Chapter 13 case is where you can file a motion to value the panels so that you are paying back the value of the system instead of what you actually owe on it.  This might also reduce your interest rate.

The only way to satisfy the UCC lien is to pay off the debt.  UCC filings expire every five years.

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Do I have enough debt to file for bankruptcy? https://lawgina.com/debt-bankruptcy/do-i-have-enough-debt-to-file-for-bankruptcy/ https://lawgina.com/debt-bankruptcy/do-i-have-enough-debt-to-file-for-bankruptcy/#respond Sat, 23 Jul 2022 01:05:18 +0000 https://lawgina.com/?p=51860 There is no minimum threshold amount of debt to be able to file for bankruptcy. My personal recommendation is that it’s probably not worth it for a debt amount under $5,000. If you have debt over $5,000, your minimum monthly payments are causing you a hardship, and you have been paying high interest and minimum […]

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There is no minimum threshold amount of debt to be able to file for bankruptcy. My personal recommendation is that it’s probably not worth it for a debt amount under $5,000. If you have debt over $5,000, your minimum monthly payments are causing you a hardship, and you have been paying high interest and minimum payments with little, or no progress in reducing the principal amount of the debt you are a potentially good bankruptcy candidate.

There is no maximum amount of debt to file a Chapter 7, so that amount can be unlimited. If you have hundreds of thousands of dollars in debt, be assured that the trustee will ask how that money was spent. Some people have over hundred thousand dollars just in student loan debt alone. Even though there is no debt limit to file a Chapter 7, there are income requirements which should be addressed during your consultation. Our first analysis is whether you will qualify for a Chapter 7.

There are caps on debt in a Chapter 13 case which might seem illogical because you are actually paying your creditors, through the trustee for 36-60 months and in a Chapter 7 you are not making a monthly payment to the trustee. For a Chapter 13 you are permitted to have $465,275 in unsecured debt. Unsecured debt includes credit cards, personal loans, medical debt, and student loan debt.

You are allowed to have up to $1,395,875 in secured debt which would include items such as a home mortgage or financed vehicle.

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What types of income are counted in the means test? https://lawgina.com/bankruptcy/what-types-of-income-are-counted-in-the-means-test/ https://lawgina.com/bankruptcy/what-types-of-income-are-counted-in-the-means-test/#respond Fri, 22 Jul 2022 12:33:14 +0000 https://lawgina.com/?p=51858 There are certain income qualifications for a Chapter 7 bankruptcy. Social security income, including social security disability does not count as income on the means test (the test on the bankruptcy petition that determines which chapter of bankruptcy you qualify for). Similarly, veteran disability benefits do not count as income. For example, if you are […]

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There are certain income qualifications for a Chapter 7 bankruptcy. Social security income, including social security disability does not count as income on the means test (the test on the bankruptcy petition that determines which chapter of bankruptcy you qualify for). Similarly, veteran disability benefits do not count as income. For example, if you are receiving social security or veteran disability benefits you could make an unlimited amount per month and still qualify for a Chapter 7 bankruptcy.

Some people are surprised that pensions for government work such as teachers, police officers, military, or firemen still count as income. Workers’ compensation benefits also count as income. Short-term or long-term disability from a private company that is not social security are considered income. Regular wages or income from self-employment are considered income. Child support and alimony are considered income on the means test. Even if the income is not taxable, it could still qualify as income on the means test.

The issue of whether money in your account at the time of filing is exempt is a totally different issue than whether it counts as income on the means test. For example, workers compensation, child support and alimony are generally exempt even though they are considered as income on the means test Any money you have in your bank account from one of these sources in addition to social security or veteran disability benefits would be protected from the trustee.

We can exempt up to 75% of wages in your bank account. However, self-employment income is not exempt. It is important to have an attorney help you evaluate your candidacy for a Chapter 7 bankruptcy and to ensure you maximize your property exemptions.

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When I file for bankruptcy is my home protected? https://lawgina.com/homestead-exemption/when-i-file-for-bankruptcy-is-my-home-protected/ https://lawgina.com/homestead-exemption/when-i-file-for-bankruptcy-is-my-home-protected/#respond Fri, 24 Jun 2022 01:42:23 +0000 https://lawgina.com/?p=51854 If you have been living in Florida for over 2 years, the homestead exemption can be used as long as there is less than $189,050 in equity for each person filing. For example, if there are two married people filing a joint bankruptcy, then you can double the exemption amounts so that amount would be […]

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If you have been living in Florida for over 2 years, the homestead exemption can be used as long as there is less than $189,050 in equity for each person filing. For example, if there are two married people filing a joint bankruptcy, then you can double the exemption amounts so that amount would be less than $371,100 in equity you would be allowed to protect. You can have unlimited equity in your home if you have owned it for 1215 days prior to filing your petition.

This includes another home if you have bought and sold another homestead property within those 1215 days. Typically, this is not an issue since the home equity is usually lower than the allowed statutory amount. If you have moved from another state in the last 2 years, we cannot use the Florida exemptions and would have to perform an analysis on which exemptions apply. Some states allow non-residents to use their exemptions. Other states will require non-residents to use federal exemptions. Most states would not allow you to exempt property in Florida after you have moved from another state.

You must also be residing in your home to be able to claim homestead exemption. The homestead exemption would not protect or apply to an investment property or a property where you are on the deed but are not living in the residence. There are exceptions if you are away from your home temporarily but have full intention of returning. Some examples are being away for medical treatment or being active duty in the military. As long as you intend to return to your home and you are not renting out the property, it can continue to be exempt as your homestead.

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