This process involves two steps. The first step is to determine which state in which to file bankruptcy. The second step is to determine which exemptions you should use - Florida's exemptions or the other state's.
In determining where to file bankruptcy, you would file in the district in which you have resided (or have property located) for the majority of the last 180 days. For example, if you moved to Fort Myers from Milwaukee, Wisconsin, two months ago, you would file bankruptcy in Wisconsin. If you moved to Fort Myers 91 days ago, you would file bankruptcy in Florida.
In determining which state's exemptions to use, you have to look at which state you have resided in for the last 730 days prior to filing bankruptcy. If you have not resided in the state in which you are filing for at least 730 days prior to filing, you must use the exemptions of the state in which you resided for the majority of the time you resided the 180 days prior to the 730 days. In the example above, even though you have resided in Florida for the majority of the last 180 days, you cannot use Florida exemptions because you have not lived in Florida for the 730 days prior to filing. In this case, you would have to use the exemptions of the state in which you resided the 180 days prior to the 730 days before filing bankruptcy..
Sometimes, a state requires that you have to be a resident of that state in order to claim its
exemptions. In the above example, if the State of Wisconsin requires you to be a resident of Wisconsin in order to claim its exemptions, you would not be able to use Florida or Wisconsin exemptions if you filed bankruptcy in Florida. You would have to use the federal exemptions.
If you are moving or thinking about moving to Fort Myers, I would recommend getting
a consultation with a Fort Myers bankruptcy attorney
as well as an attorney located in the state in which you are moving from. The attorneys could then determine which state would be more advantageous for you to file and which state's exemptions would be more advantageous to you.
To speak with a bankruptcy attorney in Fort Myers, Fl
, call the Rothrock Law Firm at (239) 206-1948.
Should I charge up my credit cards before filing bankruptcy?
Any charges made on your credit card within 90 days of the filing of your bankruptcy are presumed to be fraudulent charges. In other words, the court will assume you deliberately charged up your cards and intended not to repay your creditors. The burden of proof will be on you to prove that you did not commit fraud. Any charges made more than 90 days of the filing of your bankruptcy are presumed to be charges that are not fraudulent. The burden of proof will be on the creditor to prove that you committed fraud. If at all possible, you should wait to file your bankruptcy until after the 90 days runs.
What happens if the Court makes a finding of fraud? If the court finds that you committed bankruptcy fraud, it can do one of several things: First, it can order you to repay the money to that particular creditor. Second, it can dismiss your bankruptcy case because you filed the bankruptcy petition in bad faith. Third, the government can file criminal charges against you.
In deciding what remedy, if any, to pursue, the court will look at the amount of the charges and
your motives. If you bought a tank of gas on your credit card shortly before you filed bankruptcy or paid for your treatment at the emergency room, a court will probably find that you did not commit fraud. If you bought a plasma tv the day before you filed bankruptcy, the court will probably find that you committed fraud and will probably make you repay the creditor for the tv. And then there was former major league baseball player Len Dykstra. A court found that Mr.
Dykstra sold his world series memorabilia for tens of thousands of dollars so that his creditors would not get the proceeds from those items. Mr. Dykstra was recently sentenced to federal prison.
If you are contemplating filing bankruptcy, call an experienced Fort Myers Bankruptcy Attorney
at (239) 206-1948 for a free initial consultation.
No. When people come in for a bankruptcy consultation, I usually ask them to get a free copy of their credit reports on www.annualcreditreport.com
. The service offers one free credit report from each of the major credit bureaus per year. One of the most useful pieces of information you can learn from the credit report is whether you are legally responsible for the debt or not. On your credit report, each of your credit cards will display the responsibility of the credit card holder. The account will either say "individual account," "joint account," or "authorized user."
If husband and wife have a credit card that is a joint account, both parties are permitted to use the card, and both parties are responsible for the debt. If husband has an individual account, he may permit wife to use the card; however, she is not legally responsible for the debt. If husband has a card and wife is an authorized user, wife does not need husband's permission to use the card, and she is not legally responsible for the debt. Husband is legally responsible for the debt.
Keep in mind, your credit score can go up or down even if you are an authorized user; however, if the card is not paid, the card company's remedy is against the owner, not the authorized user.
If you would like to speak to an experienced bankruptcy lawyer in Fort Myers
, please call the Rothrock Law Firm at (239) 206-1948.
The bankruptcy exemption laws allow you to keep property valued up to a certain dollar amount. Anything that exceeds that amount must be paid back. The question people ask if "How do I determine the value of my property?"
For items as bank accounts, you would use the balance of the account the day you filed your bankruptcy.
For your home, the best method would be to use the valuation as determined by a certified appraiser. As an appraisal can be costly, you could also used the value as determined by a broker price opinion (BPO) or the value as determined by your local tax collector. Sources such as Zillow and Trulia could also be used.
For your vehicle, you must use the NADA retail value of the vehicle as adjusted by needed repairs to the vehicle. If you believe that your vehicle is worth less than the NADA retail value, you should have your car appraised by a certified appraiser.
Personal property and jewelry is often times the hardest property to determine valuation. The most accurate valuation would be to use a certified appraiser or gemologist. You could also check sources such as Craigslist, Goole
, or Bing
to see what your items are selling for. Alternately, you could look at bankruptcy schedules filed by other people to see what valuations they used.
If you are filing bankruptcy in Cape Coral, Fort Myers, Naples, or Lehigh Acres, the bankruptcy trustee's office will verify the value of your vehicle with the NADA valuation so make sure your numbers are accurate. Although the appraised value is the most accurate value, it is also the most costly method of determining valuation. Speak to an experienced bankruptcy lawyer in Fort Myers
at (239) 206-1948 to help you decide when and if you should get the appraisal.
I'm seeing this scenario more and more: A middle aged couple who has had perfect credit their whole life walks in my office and wants to file bankruptcy because the Southwest Florida real estate market crashed, and the couple's assets are depleted. Because the couple had perfect credit in the past, the husband or wife had purchased a car for the couple's college aged child a few years ago. The child makes the payments on the car. The question is: Will the bankruptcy court consider the car an asset of the parents or the child? Will the bankruptcy trustee take the car from the child to repay the parents' creditors?
A number of factors determine the outcome in this case.
Any property titled in the debtor's name is presumed to be property of the debtor.
The debtor can overcome the presumption if he shows that he is holding property for someone else in a constructive trust.
In the scenario listed above, if mom bought the car for daughter because daughter was 18 and could not get financing, the car is presumed to be the mother's car. If the daughter had made all the payments on the car and has made all the payments for the insurance, the trustee will more than likely take the position that the car will not be counted as bankruptcy property. If you are a debtor taking this position, be prepared to trace all the funds that were used to pay for the car and the insurance.
Keep in mind that the trustee might not take the same position if the child made the car payments and the parents made the insurance payments.
If you are contemplating bankruptcy, call an experienced bankruptcy lawyer in Fort Myers
at (239) 206-1948.
Should I withdraw my retirement funds before filing bankruptcy?
If you file bankruptcy in Florida, almost all retirement funds are protected from your creditors. This includes 401k, Keough plans, IRAs, Roth IRAs, etc. For the most part, retirement funds are unlimited in exemption. IRAs are limited to approximately $1 million per spouse.
In other words, if you file bankruptcy and you have $100,000 in credit cards and $500,000 in retirement funds, you can get rid of the credit card debt and still keep your retirement.
Further, if you withdrew your retirement funds early to pay your creditors, you will more than likely have to pay taxes and penalties. The taxes are usually nondischargeable in bankruptcy.
Like everything else about the law, there are general rules and exceptions. If you are thinking about filing bankruptcy, call an experienced bankruptcy lawyer in Fort Myers
, at 239-206-1948.
One of the questions I often get is whether you can use money in your checking account to pay down your mortgage prior to filing bankruptcy. After all, Florida law allows you to keep only $1,000 in your checking account if you are single but you can keep all the equity in your home. Sounds like a good idea? Well, not so fast.
Although you are allowed to keep all the equity in your home if you filed bankruptcy and have resided in the home for at least 40 months prior to filing, you are not allowed to keep extra cash payments made toward the principal of the mortgage 40 months prior to filing.
Note that this rule does not apply if you live in Florida and choose not to file bankruptcy.
Consider a consultation with a bankruptcy attorney in Fort Myers
before you move money around.