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Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Florida statute §222.14 provides that the proceeds of annuity contracts issued to citizens or residents of Florida are exempt from a beneficiary’s creditors unless the annuity was effectuated for the benefit of the creditor. §222.14, Florida Statutes. In the case of Mc Collam v. LeCroy, 612 So. 2d 572 (1993), the Florida Supreme Court held that an annuity contract awarded to the debtor by a defendant to fund a structured settlement of a personal injury case was exempt. The creditor argued that the annuity contract did not qualify as an exempt annuity contract as being in substance a nonexempt structured settlement. The court noted that the statute does not define “annuity contracts” and hence it did not find the exemption limited to any particular types of annuity contracts, such as those based on the insurance of human lives.
The court in In re Dillon, 166 B.R. 766 (Bankr. S.D. Fla. 1994) illustrated the distinction between an exempt annuity contract purchased to fund a structured settlement and a mere structured settlement. In Dillon the judgment creditor agreed to make annual payments and did not purchase an annuity contract to effectuate the annual payments. The court held that the annual payments were not exempt proceeds of an “annuity contract” pursuant to §222.14, Florida Statutes.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Florida statute 222.11 generally provides for certain exemptions of "disposable earnings" of a head of family and non-head of family in three different situations as follows:
- All of the disposable earnings of a head of a family of $500.00 or less a week are exempt.
- Disposable earnings of a head of family greater than $500.00 are exempt unless the person has agreed otherwise in writing (also cannot exceed 15 USC 1673)
- Disposable earnings of a person that is not a head of family is exempt to the extent of 15 USC 1673
15 USC 1673 generally limits the amount that can be garnished to 25% of the individual's disposable earnings per week. Exempt earnings that are deposited into a bank are exempt for six months if the funds can be traced to and identified as earnings.
The determination of whether a person is the "head of family" is based on the totality of the circumstances.
"Earnings" is defined to include compensation paid in money for personal services or labor whether denominated as wages, salary, commission, or bonus. Disbursements from a family owned business may not constitute "earnings" unless there is a formal arms length employment agreement and if the disbursements are characterized as "profits." Commissions and bonuses may constitute earnings even if the person is labeled an independent contractor if his activities are essentially a job, he is supervised, and not in the nature of running a business. But commissions have been held not to constitute earnings if the person is free to make his own business decisions and solely responsible for expenses incurred in the operation of his business. A return on an equity investment is not earnings.
Lost wages have been held to consitute earnings where the settlement properly identified them as earnings.
According to the Federal Rules of Bankruptcy Procedure, the party objecting to exemptions has the burden to prove by a preponderance of the evidence that a debtor is not entitled to the claimed exemption. If the objecting party establishes prima facie evidence that the exemption should be denied, the burden shifts to the debtor to establish that the exemptions are legally valid.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Bankruptcy is used by millions of consumers to help them regain financial control. As a significant financial tool it has been used to help stop repossession, foreclosure, and wage garnishment. You can obtain the fresh start you need or get help repaying obligations based on what you can afford without paying interest. It is common [...]
As many readers of our Cooler e-mails and blog posts are aware, one of the hottest current topics in personal bankruptcy is the treatment of rent–stabilized leases in Chapter 7 personal bankruptcy cases. Earlier this month, the New York Times had an excellent front page article entitled “Widow's Bankruptcy Case Poses Risk to Rent-Stabilized Tenants.” The case is captioned Santiago-Monteverede v. Pereira and involves 79 year old Mrs. Mary Veronica Santiago-Monteverede, who has lived in a two bedroom rent stabilized apartment in the East Village for 50 years and is paying monthly rent of $703, while the market rate for the unit would be $2,000 to $2,500 per month.
Ms. Santiago-Monteverede filed Chapter 7 bankruptcy to discharge $23,000 of debt, none of which was owed to her landlord. Her landlord made an offer to purchase her lease from Chapter 7 Bankruptcy Trustee John S. Pereira, which he accepted. The sale of the lease was subsequently challenged by Ms. Santiago-Monteverde’s attorneys. The U.S. Bankruptcy Court for the Southern District of New York and the U.S. District Court for the Southern District of New York both ruled in favor of the Bankruptcy Trustee, and the case is now pending before the 2nd Circuit Court of Appeals, where oral arguments were held on September 23rd.
This is the first Chapter 7 personal bankruptcy rent–stabilized case to reach the 2nd Circuit Court of Appeals. Please keep monitoring our Cooler e-mails and blog, and when the 2nd Circuit Court of Appeals issues a decision and order, we will report on it. Again, debtors who live in apartments with rent–stabilized leases need to proceed with extreme caution in deciding whether to file for bankruptcy. Jim
As long as you like. And in some respects, not at all.
You’re in debt and can’t climb out of the hole. So you bite the bullet and file for bankruptcy.
It’s not what you wanted to do, but it’s what you needed to do.
Now, sitting with your discharge in hand, you wonder: how long will this drag me down?
Tough question.
The answers may change your thinking about filing for bankruptcy.
Your Credit Report And Bankruptcy
The fact that you filed for bankruptcy will remain on your credit report for 7-10 years depending on the type of case you filed.
Your old debts, the ones you wiped out in bankruptcy, will show a balance due of $0 with a notation that the debt was discharged in a bankruptcy case. Those tradelines will remain on your credit report for 6 years.
The real question, however, is how long your credit score will remain negatively impacted by the fact that you filed for bankruptcy.
See Also:
- Credit Repair After Bankruptcy – Necessary Or A Scam?
- How To Remove Bankruptcy From Your Credit Report
Here’s where things get more complicated. Credit scoring takes into account a variety of factors, including your recent payment history. If you’ve got no debt coming out of bankruptcy, the impact of the case will be larger at first and decline slowly.
If, on the other hand, you have debts that were not wiped out in your bankruptcy case (for example, student loans) and make all post-bankruptcy payments on time then the impact on your credit score will decrease more quickly.
A rule of thumb is that your credit score should start to rise about 12-18 months after your case is closed. If you’re smart about handling your new debt, your credit score should be in terrific shape in about two years.
The Impact On Your Personal Financial Situation
Once you’ve filed for bankruptcy, you’re no longer going to be paying those debts.
Now is the time for you to sit down and work out a budget that includes putting some money away for the proverbial rainy day.
I’m in in your pocket, but without the money going out each month to pay the debts I’m sure you can spare a few bucks for savings. In just a few months, that cushion will be large enough to float you through the bumps in the road of life.
Your State Of Mind
I know how it feels to be deep in debt without a way out. You feel trapped, like an animal in a very small cage.
Every phone call produces anxiety and fear.
You find yourself holding your breath when you pick up the mail.
So your relationships suffer, your sleep patterns are thrown off, and you get tossed into a mad whirlwind of depression. Overall, you become a person who is a not nearly as nice and kind as the person you used to be.
But now that there’s no more debt, the ringing phone signals a friend or family member who wants to talk with you. Mailboxes contain … well, probably junk mail that you can toss out.
You sleep better, for the first time in a long time.
That good feeling can last forever, so long as you keep yourself out of debt.
The Bad Falls Away, The Good Remains
Yes, there’s a credit score hit when you file for bankruptcy. But that hit falls away pretty quickly.
On the flip side, the positive impact on your life can be long-term and sustained.
If you’re at the point where bankruptcy is the best option – or if you’ve already gone through bankruptcy – consider the short-term burden as a small payment for long-term benefits.
Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
In 2007, the Bankruptcy Court issued its decision in the case of In re Willis, 07-11010-BKC-PGH (S.D Fla. 2007)(Hyman, J.) which reviewed the IRA exemption in bankruptcy or the unfortunate lack thereof due to "prohibited transactions."
Although the bankruptcy code generally provides for the exemption of IRAs in bankruptcy, this exemption may be lost if the bankruptcy court determines that the IRA has lost it tax exempt status by engaging in "prohibited transactions." The IRS's initial favorable determination of an IRA is as to its form and is different from a bankruptcy court's review of the conduct under the plan and the loss of tax exempt status.
The bankruptcy code provides in section 522(b)(3)(C) for the exemption of "retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986." The bankruptcy code also provides a rebuttable presumption that retirement funds are exempt if a favorable determination is received from the IRS. The bankruptcy code further sets forth a certain analysis if the retirement funds have not received a favorable IRS determination.
A bankruptcy trustee or creditor may attempt to rebut the presumption of exemption provided by the bankruptcy code for retirement funds that received a favorable determination by presenting evidence that the retirement fund was improperly operating under the applicable IRC provisions. In the In re Plunk decision, the Fifth Circuit Court of Appeals held that the bankruptcy court is permitted to reach an independent decision regarding a retirement plan's qualified status and is not bound by the IRS's previous determination. In re Plunk, 481 F.3d 302 (5th Cir. 2007). The Plunk court explained that there was no risk of conflicting decisions as the IRS's determination was only as to the retirement plan's structure while the court would be reviewing alleged misconduct that could disqualify the plan.
Section 408 of the IRC generally provides that IRA's are exempt from taxation unless "prohibited transactions" are engaged in by the owner or beneficiary of the IRA. If prohibited transactions are engaged in, the account ceases to be a qualified IRA as of the first day of the taxable year where a prohibited transaction is engaged in. Prohibited transactions includes a sale of property, the lending of money, and the transfer of income or assets by the plan to a "disqualified person" which is defined as a fiduciary of the plan such as any person who exercises authority or control over the plan.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
In Florida, domicile is generally regarded as the place where a person has a fixed abode with the present intention of making it his permanent home. One established, a domicile continues until it is superseded by a new one.
A person's intentions may be proved by his expressions of intent and by overt acts proving intent. Intent may be shown by ones testimony or that of another. Courts though tend to focus on nonsubjective evidence to infer intent such as the following:
- executing a new will reciting Florida as the state of domicile
- filing of a declaration of domicile with the clerk of court
- obtaining of a Florida driver license
- obtaining a Florida library card
- registering to vote in Florida
- owning a Florida residence and filing a Florida homestead exemption for the property
- sale of residence in former state of domicile
- ceasing employment in former state of domicile
- activity in community in Florida
- moving medical, dental, legal, and accounting relationships to Florida professionals
Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Jordan E. Bublick is a personal bankruptcy lawyer in Miami with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. He has filed over 8,000 bankruptcy cases. His office is located as 1221 Brickell Ave., 9th Fl., Miami, Florida. Telephone (305) 891-4055. www.bublicklaw.com
Chapter 7 personal bankruptcy is generally used to discharge your dischargeable debt including credit cards, medical bills, and unsecured loans.
Chapter 13 bankruptcy is generally used to propose a plan to reorganize your financial affairs while under the protection of the Bankruptcy Court. Chapter 13 bankruptcy is often used to stop a mortgage foreclosure and to catch the payments up-to-date.
Chapter 11 bankruptcy is also used to reorganize your financial affairs while under the protection of the Bankruptcy Court. Chapter 11 can be used by individuals or corporations.
Jordan E. Bublick is a graduate of New York University School of Law (LL.M., 1984), Ohio State University College of Law (J.D., 1983), and Brandeis University (B.A., 1979). The law firm was established in 1985. Practice is limited to bankruptcy law.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Miami Bankruptcy Attorney Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
The bankruptcy court in (Bkrtcy.S.D.Fla. 2006)(Isicoff, J.) held that the doctrine of res judicata did not bar the involved Truth in Lending Act ("TILA") claim. In this case, the debtor filed a bankruptcy case under chapter 13 to stop a foreclosure sale pursuant to a judgment of foreclosure. The debtor sent a letter to rescind and arguing that his right to rescind was extended as mortgagee did not provide him with the required TILA disclosures 15 U.S.C. section 1601 et seq., and Reg. Z and did not comply with HOPEA which is subsection of TILA.
The court held that in determining the res judicata effect of state court judgment, one looks to law of the state. It noted that Florida res judicata law bar any future action if there is an identity in both cases of 1. the things sued for, 2. the causes of action, 3. the identity of the parties, and 4. the identity of capacity of the parties. Res judicata bar not only issues that were raised but precludes consideration of issues that could have been raised but were not. The court reviewed that the principal test in determining whether causes of action are the same is whether the primary right and duty are the same in each case
The court noted that in this case the issue was whether the substance of the debtor's TILA was subject to res judicata based on the prior foreclosure judgment. The court further noted that the debtor's TILA claim not a compulsiary counter-claim to a foreclosure action. The court found that the language of TILA is permissive not mandatory and that it can be asserted as original action or as a defense/counterclaim. The court did not find a Florida state court case directly on point. The court held that all of the claims, except those relating to the non-HOEPA disclosures, would not be barred by res judicata.
The court held that even if the state court judgment technically would meet the requirements for res judicata, it would decline on basis of equity to grant motion for summary judgment for defendant. Hartnett v. Mustelier, 330 B.R. 823 (Bankr.S.D.Fla. 2005)(based on equitable principals court declines to give collateral estoppel effect to a default judgment). The court found that Florida law recognizes a manifest injustice exception to res judicata and collateral estoppel, especially involving a pro se litigant.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
The case of Mejia vs. Ruiz, 3rd DCA, May 14, 2008, 3D07-2254 involved proceedings supplementary against shareholders and directors of a judgment debtor corporation. After the corporation was sued, shareholders took corporate assets and left the corporation insolvent. A writ of execution was issued on corporation. Proceedings supplementary were subsequently pursued pursuant to 56.29.
The court explained that there are two prerequisite for proceedings supplementary - a returned and unsatisfied writ of execution and an affidavit that the writ is of execution is valid and unsatisifed along with list of third parties to be impleaded. Impleading does not imply liability but provides them with an opportunity to raise their defense and protect their interests.
The court noted that pursuant to Florida Statutes Section 56.29 provides that a transfer, assignment, or other conveyance of personal property made or contrived to delay, hinder, or defraud per 726.105is creditors is void. The burden of proof is a preponderance of the evidence. Fraudulent intent may be presumed from "badges of fraud." The badges of fraud create a prima facie case and raise a rebuttable presumption that transaction void.
The court found prima facie proof of badges of fraud. Also known creditors were not notified of dissolution of corporation per 607.1406. The court explained that shareholders follow 607.1406 given limited immunity. Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
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