Kelly Roberts

Kelly Roberts elected Vice President of Bankruptcy Bar

The Bankruptcy Bar Association of the Southern District of Florida holds its elections for its board and directors every spring. Kelly Roberts was elected the First Vice President for the 2017-2018 term. Kelly previously was the Second Vice President and has served as a board member since 2014.

The election results are as follows:

PRESIDENT
David Samole
Kozyak Tropin and Throckmorton     

PRESIDENT ELECT
Zach Shelomith
Leiderman Shelomith Alexander + Somodevilla 

FIRST VICE PRESIDENT
Kelly Roberts
The Bankruptcy Law Offices of James Schwitalla                   

SECOND VICE PRESIDENT
Brett Lieberman
Messana PA     

SECRETARY
Hayley Harrison
Bast Amron   

TREASURER
Michael Dunn
Dunn Law

DIRECTORS
2015-2018
Rilyn Carnahan
Greenspoon Marder

Eric Silver
Stearns Weaver

^Felipe Plechac-Diaz
Leiderman Shelomith Alexander + Somodevilla

2016-2019
Jesse Cloyd
Tripp Scott

^Michael Lessne
Broad and Cassel

Grace Robson
Markowitz Ringel Trusty & Hartog

*Steven Newburgh
McLaughlin Stern

2017-2010
Morgan Edelboim
Bast Amron

Marilee Mark
Genovese Joblove & Battista

*Eric Rosen
Fowler White Burnett

IMMEDIATE PAST PRESIDENT
Ido Alexander
Leiderman Shelomith Alexander + Somodevilla

* Palm Beach County Director
^ Broward County Director

chapter 13

Chapter 13 Bankruptcy & the Eligibility Limits

Chapter 13 eligibility is important to any debtor seeking relief in a chapter 13 bankruptcy case.  Chapter 13 offers great benefits for those who qualify, so how does one qualify to be a chapter 13 debtor?  Chapter 13 requires payments, so the first requirement is the ability to make the payments necessary in the plan. This is referred to as feasibility.  The ability to pay can be evidenced by wages from a job, social security, rental income, or the support of family members.

The other eligibility is actually making the payments.  If at any time during the case, the chapter 13 debtor fails to make the payments laid out in the plan, then the chapter 13 trustee will file a motion to dismiss or announce dismissal of the case at a scheduled hearing.

Eligibility limits are an important consideration when considering what chapter to file for a debtor.  The current version of 11 U.S.C. Section 109(e) sets the debt limits for a chapter 13 debtor are $250,000 of noncontingent, liquidated, unsecured debts and $750,000 of noncontingent, liquidated, secured debts on the date of the filing of the case.

This seems clear as to whether there is eligibility, but like in all areas of law there are shades of grey.  There are actions taken during the confirmation/formation of the plan which change the amounts of secured and unsecured debts.  Judge Ray of the Bankruptcy Court of the Southern District of Florida Ft. Lauderdale Division examined such a change in In re Rubens, Case No. 10-10142-RBR (Bankr. S.D. Fla. 2010).  The issue in this case was whether the unsecured portions that the debtor seeks to strip or cram-down on real property in his or her chapter 13 plan should be used in the determination of whether the debtor exceeds the debt limits set forth in bankruptcy code section 109(e). Judge Ray held that bankruptcy code section 506(a) applies in a section 109(e) analysis of eligibility, and that the court is not confined to the classifications made by the debtor in his or her schedules at the time of filing.

The question, then becomes who raises the issues of chapter 13 eligibility?  Some courts say the issue is jurisdictional and will dismiss or convert the case the moment the chapter 13 trustee or a creditor objects based on the debts exceeding the limits allowable under the code.  Other courts see that the objection should be raised by a creditor in the first months of the case.  The courts that side this way find that the delay in raising the objection is waiver of the objection and that it is in the debtor’s and creditors’ best interest that the payments continue through the plan.

If you want to know about chapter 13 eligibility and the bankruptcy code’s debt limits, please contact me, bankruptcy attorney Kelly Roberts, at (786) 659-4422. I assist people who need help with their debt issues through bankruptcy and out of court negotiations in Miami-Dade, Broward, and West Palm Beach counties.

bankruptcy debtor death

When the debtor dies, does the bankruptcy live on?

Bankruptcy is a complicated process that can be more complicated when the debtor dies prior to the case’s completion. What happens in a bankruptcy when the bankruptcy debtor dies during the case?

Courts have found that chapter 7 cases can continue despite the debtor’s death. In re Lucio, 251 B.R. 705 (Bankr. W.D. Tex. 2000). Routinely, chapter 13 cases continue despite the death of the debtor since the plan is in place and the representatives for the Debtor’s estate can continue to make the necessary plan payments for the completion of the plan.

Credit Counseling Issues

At the end of the plan, there is often the hiccup of the second credit counseling course that if not taken before the death of the debtor will be required for the issuance of the bankruptcy discharge. The debtor’s attorney can request that the debtor be exempted from the credit counseling requirement through a motion and hearing with notice to all the creditors and the United States Trustee. In re Trembulak, 362 B.R. 205 (Bankr. D. N.J. 2007) (court deemed deceased chapter 7 debtor exempt from requirement to take financial management course as a prerequisite to receiving a discharge).

Deceased Debtor’s Exemptions

A chapter 7 case is even more complicated when the the issues of exemption are more hotly contested. Can a deceased debtor claim a valid exemption? A chapter 7 trustee would certainly contest exemptions to gain access to property to administer for the benefit of creditors, but can a the debtor’s representatives protect the property using the exemptions claim at the time of the filing? A bankruptcy court in North Dakota found that the debtor’s death did not constitute abandonment of the homestead exemption under North Dakota law, therefore the homestead property retained its protected status despite the death of the debtor. In re Peterson, 897 F. 2d 935 (8th Cir. 1990).

In Florida, the property would reasonably pass to a surviving spouse or minor child if the property meets all the homestead requirements under the Florida Constitution definition. Florida Constitution in Art. X, §4. For a property to be homestead and receive the homestead protections in bankruptcy the property must meet all the requirement. For more information, please read my blog on the homestead exemption.

If you have more questions on the homestead exemption and how death affects a bankruptcy, please contact me, bankruptcy attorney Kelly Roberts, at (786) 659-4422. I assist people who need help with their debt in Miami-Dade, Broward, and West Palm Beach counties.

bankruptcy marriage

First comes Bankruptcy, then comes Marriage

First comes bankruptcy, then comes marriage. When in a relationship with a person you love and considering the next step, finances and financial goals are often discussion topics that are last on everyone’s list.

Know Before you Jump into Marriage

When a couple is taking their relationship to the next level, often the only conversation about money is who is picking up the tab at dinner. Everyone’s finances seem to be a sensitive topic and too “personal” to discuss. This is absolutely wrong. When a couple is considering marriage, finances are one of the most important topics for discussion. If you are intimate enough to discuss spending the rest of your lives together, personal debt and spending is not too personal to discuss and the discussion may be vital to the relationship working out.  How are you supposed to know if you can share a life together if you don’t know if you can share a bank account?

Discussions about income, spending habits, and debt are very important to a couple to make sure that they are both on the same page. What are your relationship goals individually and as a couple? If one partner wants to buy a house in the next two years and the other partner has bank accounts that are being garnished by credit card companies and a car repossession, then the couple’s finances are not going in the same direction. Not only that, but if the partner with the debt issues is added to the down payment savings account without properly discussing debt, then the couple could wake up one morning to find the balance of their dream home fund dramatically reduced by a garnishment.

Why Bankruptcy First?

Marriage creates a new entity. Two partners become one. A husband and wife (or other gender coupling as applicable) join finances, responsibilities, and futures to become a household. For bankruptcy purposes, this household shares income and the responsibility for debt payment even if only one of the spouses is filing bankruptcy. The bankruptcy court views the couple as a household that shares everything even if the couple has an agreement to keep everything separate.

The partner in the relationship who is bringing the debt challenges and stress that may follow him or her into the new marriage may want to seek a fresh start in bankruptcy. A bankruptcy may assist in assuring a new spouse that the there is a clean slate in front of them as a couple and provide a solution to any debt issues that may threaten their future goals.

Until the partner in debt gets his or her finances under control, it may be a good idea to not join together in new debts or link finances. The more commingled a couple’s assets, finances, and debts become, the more likely the debt free partner will be affected by the other partner’s debt.

How to start the conversation?

A good idea may be to schedule a fun dinner at home or a casual place. The point is to create a safe zone where everyone will feel comfortable and more relaxed. Each partner should bring a copy of his or her credit report and a list of bank accounts with the balances. The discussion should address income, expenses, debt, assets, and how to overcome the financial obstacles to financial goals.

If you are in a relationship and want to know how your partner’s debts will affect your future together and want to know more about bankruptcy as a solution, please contact me, bankruptcy attorney Kelly Roberts, for a free consultation (786) 659-4422.

bankruptcy discharge

The Bankruptcy Discharge & Your Fresh Start

The bankruptcy discharge is the goal of most bankruptcy cases and the key to your fresh start. The discharge is an injunction that relieves the debtor of personal liability on all the debtors unpaid debts as long as the creditors associated with those debts receive notice of the bankruptcy filing. The bankruptcy discharge is often referred to as the debtor’s fresh start.

There are exceptions to the discharge for debts owed to municipalities, domestic support obligations, newer income tax liability, and student loans. The debts that are not covered by the chapter 7 discharge are detailed in Bankruptcy Code Section 523. Bankruptcy Code Section 1328 details what items in 523 apply in a chapter 13 bankruptcy.

Other exceptions to the bankruptcy discharge are liens on the debtor’s real property. The bankruptcy discharge will address the promissory note (personal obligation on the debt), but liens and mortgages are still attached to the property. This is why a foreclosure action to take back the property will resume after the discharge is entered, but the debtor will not have to worry about a deficiency on the property because the bankruptcy discharge took care of it!

After the discharge is entered,  creditors listed in the bankruptcy filing are prohibited from moving forward in the future to collect from the debtor. This means that after the discharge is entered that a creditor cannot garnish, sue or request money based on the debt was included in the bankruptcy. The discharge is a statutory injunction that can mean severe penalties for creditors that disregard warnings and continue to pursue the debtor. 

If you have questions about how bankruptcy can help you with your debts and what debts would be unaffected by a bankruptcy, contact me, bankruptcy attorney Kelly Roberts, for a free consultation (786) 659-4422.

 

 

PPersonal Injury Claim Bankruptcy

Personal Injury Claim in Bankruptcy

A Personal Injury Claim in Bankruptcy is a common occurrence and must be disclosed to the bankruptcy trustee. The disclosure of information does not change according to whether you are filing a chapter 7 bankruptcy or a chapter 13 bankruptcy. The disclosure is made in the bankruptcy schedules of the debtor’s interest in personal property and the debtor will be asked to testify under oath at the 341 meeting of creditors with the trustee about whether a personal injury claim or the “right to sue someone to collect money” exists at the time of the bankruptcy filing.

Clients often find the disclosure confusing because people often think the right to sue means that there is a pending lawsuit and that the process has already started. The tort claim or right to sue starts with the injury or the incident that creates the damages in the lawsuit. Therefore, it is not only the current or pending lawsuit that needs to be disclosed, but also the potential personal injury lawsuit that has not yet started.

The disclosure and the testimony are not only very important in the bankruptcy, but very important in the personal injury lawsuit and settlement discussions. If the disclosure and testimony under penalty of perjury all say that there is no current personal injury lawsuit or potential for a personal injury claim, the defendant in the personal injury lawsuit will use this to dismiss the case without paying any money toward future care or to compensate you for your injury.

If you need a bankruptcy and want to know how filing bankruptcy will affect your pending or potential personal injury claim, please contact me, bankruptcy attorney Kelly Roberts, at (786) 659-4422.

bankruptcy discharge

Can I File Bankruptcy Again?

Whether you can file bankruptcy again and receive another bankruptcy discharge depends on the kind of bankruptcy you filed before and the outcome. People can file bankruptcy several times, the real questions is how often can a person file and still receive a bankruptcy discharge.

If you Previously Filed Chapter 7

If your prior bankruptcy was a chapter 7 case, then you will not be eligible to file another chapter 7 where you receive a bankruptcy discharge of your debts for eight (8) years. The eight (8) years is measured from the first bankruptcy’s first day to the date you file the second bankruptcy

If you have a prior chapter 7 case, but would like to file a chapter 13 bankruptcy the second time around, then you only need to wait four (4) years from date of filing to date of filing.

If you Previously Filed Chapter 13

If your prior bankruptcy was a chapter 13 bankruptcy, then you will not be eligible to file a chapter 7 bankruptcy where you receive a discharge of your debts for six (6) years. If your desire is file another chapter 13 case, then you only have to wait two (2) years.

Do you need a Discharge?

If you are using a chapter 13 bankruptcy to help you with your first mortgage to get you back on track, then you may not need a bankruptcy discharge to help you accomplish your goal. You will be using the bankruptcy as a tool to pay your lender, but be advised that you will need the automatic stay.

 

credit card bankruptcy

While in bankruptcy, can I keep a credit card?

If you make the decision to file bankruptcy, then no you cannot keep a credit card for emergencies. Mainly because it is not your choice. When a chapter 7 bankruptcy or chapter 13 bankruptcy is filed, creditors that you list receive notice of the bankruptcy filing and the notice of the commencement of the automatic stay.

The creditors who are noticed may charge off the debt, code it with the credit bureaus, and/or cut off access to future use. Other credit cards that you may choose not to list to receive notice of your bankruptcy filing  may find out about the bankruptcy a little later, but will eventually find out and cut off access to the credit card’s use.

In the a chapter 13 bankruptcy, the on-going use of personal credit cards is forbidden by the court because access to new debt may jeopardize the success of your payment plan. The new credit creates an expense item that is not considered in your chapter 13 budget and may make it very hard to afford your plan.

Often clients feel that the credit card is a life line when other money is tied up with creditors, so not having access to a credit card can be a stressful proposition. This is the reason that is best to enter bankruptcy with some time allotted for planning to allow for us to go over your budget and your spending, we together can go over how much of your paycheck you will be able to keep when paying your debts is no longer an issue.  A chapter 13 will allow you to learn to operate without credit cards during the life of the plan.

In a chapter 7 bankruptcy, the hiatus for credit cards maybe a much shorter break. The day after you have received your bankruptcy discharge and the bankruptcy case is closed, the credit card offers will be waiting in your mailbox. You should know that the credit cards are counting on you not knowing that you can only receive a chapter 7 bankruptcy discharge every 8 years. After reading this, I hope you will be happy to disappoint them.

bankruptcy home

Florida’s homestead exemption is not so unlimited

Florida is famous for its unlimited homestead exemption in bankruptcy. The homestead exemption is provided to Floridians by the Florida Constitution, Florida Constitution Article 10 § 4. Most people think of the homestead exemption solely as an election that saves homeowners money on their real estate taxes, but the homestead exemption is so much more.

The homestead exemption has an even more important benefit.  The exemption, if elected, protects the property from a forced sale by creditors. This protection helps homeowners that have debt issues because the home cannot be sold in order to satisfy a creditor’s judgment against the homeowner’s wishes. Unless the sale is by a mortgage company or lender who has the permission from the homeowner to sell the property when there is a default in payment on its debt. This permission slip is often a mortgage or document that pledges the home as collateral for a loan. The homestead protection also does not provide against liens for work on the property or collection of past due real estate taxes.

To receive the protection of Florida’s homestead exemption a homeowner must satisfy the below requirements:

  • You must own the property;
  • You must intend for the home to be your homestead;
  • You cannot claim the protection on more than one property; and
  • one-half acre (21,780 sq ft) within a municipality, or 160 acres (one acre is 43,560 sq ft) outside of a municipality

Does this mean that the homestead exemption prevents other creditors from reaching a person’s home if the creditors cannot sell it? No, creditors with judgments or the Internal Revenue Service can attach liens to the home which when the homeowner attempts to refinance, take out a second mortgage or sell the property will cloud the title to the property and prevent the transaction. Florida’s homestead exemption is generous and unlimited as to dollar amount, but it is limited to those who meet the parameters for its use.

Filing a bankruptcy can help homeowners resolve issues with their unsecured creditors (ex. credit cards and hospital bills) as well as assist in avoiding these liens to enable future transactions for refinancing or sale of the property if the homeowner meets the requirements to receive homestead protection using this homestead exemption.

Florida’s homestead protection from creditors and trustees in bankruptcy additionally requires the below:

  • You must own the property for at least 1,215 days prior to the bankruptcy filing

If you have further questions about bankruptcy and Florida’s homestead exemption, feel free to call Bankruptcy Attorney Kelly Roberts at (786) 658-4422.

credit card bankruptcy

Why does bankruptcy require credit counseling course?

When an individual files bankruptcy, bankruptcy code section 109(h) requires that the debtor or debtors take and complete two internet courses as necessary part of getting bankruptcy debt relief. One course must be taken within the 180 days before filing bankruptcy. The subsequent course, the financial management section, must be completed after the filing of the bankruptcy in order for the debtor to receive his or her discharge (the order at the end of the case that says the pre-filing debts are gone).

I am often asked by clients “why do I have to take these courses?” or “why is it required?” The answer is because Congress added the requirement as a part of the 2005 revisions to the bankruptcy code, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Congress was making revisions to other sections of the bankruptcy laws and the credit card companies lobbied Congress to make filing bankruptcy harder for debtors by requiring the courses before and after the bankruptcy filing. The credit card companies’ position was that bankruptcy was too easy of a process and that consumers were abusing credit and then filing bankruptcy to resolve the debts rather than paying them.  This is not my experience in the 100’s of bankruptcies that I have filed to help people with their debts, but Congress was persuaded and the requirement was introduced in the 2005 update to the bankruptcy code.

The idea was that course beforehand may dissuade the debtor from filing bankruptcy and the second financial management course may prevent future bankruptcies.