James Alan Poe, P. A.9500 S. Dadeland Blvd., Suite 610
Miami, FL 33156
Phone: 305-670-3950
Phone: 305-247-6114
jamesapoe@bellsouth.net
Key West Office
422 Fleming St
Key West, FL 33040
305-296-0975
Bankruptcy & Chapter 7
Q: What is Bankruptcy?
A: Individuals who are on the verge of financial ruin may seek protection through federal bankruptcy laws available throughout the United States. If you are having problems paying bills or being threatened by creditors with lawsuits, wage garnishment, or property siezement, bankruptcy may offer a solution.
Q. I heard the Bankruptcy laws changed recently, can I still file a Bankruptcy Case?
A: Congress passed a new set of bankruptcy laws ("bankruptcy abuse prevention and consumer protection act") more commonly referred to as BAPCPA which resulted from many years of intense lobbying by banks, financial institutions, and credit card companies. These new laws were passed and signed into law by President Bush effective on October 17, 2005.
Contrary to popular belief and erroneous news coverage, the new bankruptcy laws did not eliminate bankruptcy or change many of the protections for debtors that rumors have stated. With the assistance of an experienced bankruptcy attorney, an individual or corporation can still avail themselves of the same protections as under the old bankruptcy laws. In some cases the new laws are even more advantageous. There are just a few more hoops to jump through and more documentation required.
Q: What are my alternatives?
A: Individuals may choose several different types of bankruptcy. The choice of a particular chapter will depend upon the financial circumstances of the debtor, the amount and nature of the debts to be dealt with in the bankruptcy, the exemptions available, and the types of assets owned by the debtor
Q. Will all my debts be discharged?
A: A debtor cannot discharge certain debts including most taxes, student loans, alimony and child support, debts incurred through fraud or theft, and certain other types of non-dischargeable debt.
Q: What are the differences between Chapters 7 and 13?
A: Chapter 7 of the Bankruptcy Code is entitled “Liquidation” and, as the name implies, generally requires sales or foreclosure of all property except property deemed to be exempt. In most instances, the Chapter 7 debtor is promptly discharged from all or most pre-bankruptcy debts and receives a fresh start on a new economic life. This new economic life frequently begins only with exempt assets. Chapter 13 is entitled “Adjustment of Debts of Individuals with Regular Income.” It is often called “wage earner” or just “Chapter 13.” Chapter 13 debtors pay all or part of their debts through future income rather than through liquidation or foreclosure of present assets. Chapter 13 is available only to individuals with regular income whose non-contingent, liquidated unsecured debts are less than $250,000 and whose secured debts are less than $750,000. Corporations and partnerships are not eligible for Chapter 13. The Chapter 13 debtor’s income must be regular, but can come from such things as self-employment, pension, welfare or alimony.
Q. What is Chapter 7 bankruptcy?
A: Chapter 7 is what most people refer to as “straight bankruptcy.” In a Chapter 7, the debtor turns over all of his or her non-exempt assets to a Chapter 7 trustee. The Chapter 7 trustee liquidates the assets and distributes the proceeds to the debtor’s creditors. By order of the Bankruptcy Court, the person is then discharged from all debts.
Q. Will all my debts be discharged?
A: A debtor cannot discharge certain debts including most taxes, student loans, alimony and child support, debts incurred through fraud or theft, and certain other types of non-dischargeable debt.
Q. How often can I file Chapter 7?
A: A debtor can receive a discharge from his or her debts only once every eight years.