Miami Bankruptcy Attorney Blog

If you have filed for bankruptcy in the past and are thinking about filing for bankruptcy again then you may or may not be eligible to file again depending on date since you last filed.   If you previously filed for Chapter 7 bankruptcy in Florida then you must wait eight years from the date of filing in order to be able to file for bankruptcy again.   The important date to remember is the date that you filed not the date that you received your discharge.

If you are thinking of filing for bankruptcy and would like to schedule a free consultation with a local bankruptcy lawyer then please contact Shmucher Law, PL by calling 305.741.5553 or 954.309.5559.  We offer free in-house or phone consultations and can see clients in any of our office locations including Boca Raton, Fort Lauderdale, Miami, Plantation, and Sunrise Florida.

I have been meeting with numerous clients who have told me what “other attorneys” have told them regarding their vehicles and if they will lose them when they file for bankruptcy.  The answer to this question really depends on whether there is equity in your vehicle and whether you can exempt that equity in the vehicle.

A recent client told me that another attorney told her that bankruptcy trustees will not seek to take possession of cars if they are over five years old.  This advice is completely false, and following it would potentially yield the debtor from losing their vehicle.

The bankruptcy trustees job is to recover money and use that money to pay some of your creditors.   Also the bankruptcy trustee gets paid a percentage of the money that they recover in every case.  While you think that you may have a sad story and that “it’s your only car,” you must remember that your bankruptcy filing is VOLUNTARY and that once you file you understand that ramifications.  If your attorney doesn’t inform you of the consequences of filing for bankruptcy when you are over-exempt then I suggest you see a different bankruptcy attorney.

How much over-exempt is “safe” for a car:

A trustee is allowed to request the debtor to pay any amount that he or she is over-exempt on any asset, so there is no “safe” amount.  Whether the trustee acts and requests a debtor to make a payment on the amount they are over-exempt depends on the trustee (and bankruptcy trustees are assigned at random).

How long will I have to pay for an asset that is over-exempt:

A bankruptcy once told a debtor in a meeting of the creditors that he “is not in the collections business,” and that he would rather take a little less money by selling the vehicle now, rather than wait for the debtor to pay it over an extended period of time.   So the answer to how long a bankruptcy trustee will give you to repay debts really depends on the bankruptcy trustee.  Some bankruptcy trustees will give the debtor a week, while others will allow repayment plans of upwards of six months.

Before you decide to file for bankruptcy it is in your best interest to meet with a bankruptcy attorney who will give you a worst case scenario and a realistic answer as to what will happen in your case.  No bankruptcy attorney will give you a guarantee on your case but most will give you an opinion based on their experience in the district in which you are filing in.

If you are thinking of filing for bankruptcy in Florida and would like to schedule a time for a free consultation with a local bankruptcy attorney then please contact Shmucher Law, PL by calling 305.741.5553 or 954.309.5559.  We offer free consultations in any of our office locations including Boca Raton, Fort Lauderdale, Miami, Plantation and Sunrise Florida.

If you are in a situation where you are looking to file for bankruptcy then you probably were going through some difficult times when you needed money.  The first place any person looks to get money is from family members.  Debtors routinely borrow money from family members to stay afloat in an attempt to avoid bankruptcy.   Sometime in the future the debtor may come across some money (tax return, bonus at work, etc) and the first thing they want to do with the money is payback the family members who lent them money.  This may seem to be the most rational way of thinking, in the bankruptcy world this is a bad idea.

The bankruptcy code attempts to treat all creditors on the same level, which basically means the money you borrowed from your aunt is treated the same as the money you owe on your credit card.  When you choose to pay your aunt back the money you owe her, but not to pay the credit card you owe you are PREFERING your aunt over your other debts.

So what happens if you file for bankruptcy and you paid a family member back money?  The bankrupt cy court can look back 12 months to see how much money you paid your family members.  The court will then likely sue the family member for the amount of money they received because it was considered a PREFERENCE.

Example:  If you paid your aunt $2,000 a few months before you filed for bankruptcy then she will likely be sued to return the $2,000 prior to the bankruptcy.

Don’t let the fact that there may be a preference suit prevent you from filing for bankruptcy, if you or a relative has to return a few thousand dollars in exchange for discharging tens of thousands or hundreds of thousands of dollars in debt may be a trade that a debtor is willing to make.

Make sure to inform your bankruptcy attorney of ANY PAYMENTS YOU MADE TO FAMILY members during your initial consultation.  If you haven’t made any payments to family members then don’t pay them until after your bankruptcy case is over.

If you are thinking of filing for bankruptcy and would like to schedule a free consultation with a local bankruptcy attorney then please contact Shmucher Law, PL by calling 305.741.5553 or 954.309.5559.  We offer free consultations in any of our office locations, including Boca Raton, Fort Lauderdale, Miami, Plantation, and Sunrise Florida.

Some people are ashamed that they have filed for bankruptcy and want to keep it private, and so they ask me if there is anything they can do to keep their bankruptcy filing private.  Unfortunately the filing of a bankruptcy is a public filing and is a matter of public record.

What is a public record? 

A public record is any information that is maintained by a government agency.   When a bankruptcy case is filed it is assigned a district in the United States Bankruptcy Court.  For clients filing in the Broward, Dade, or Palm Beach Counties the district is the Southern District of Florida.   While most of your bankruptcy petition is available as a public record, information such as social security numbers, credit card numbers, or any sensitive information will not be made public.

Will family members find out that you filed for bankruptcy?

More likely than not, your family members will not find out that you have filed for bankruptcy UNLESS you owed them money and listed them on your bankruptcy petition.    Family members that you owe money to must be listed on your bankruptcy petition and they will receive notice

Will my bankruptcy filing be reported in the newspaper?

Depending on the district where you file your case, there is a chance that your bankruptcy case may be published in a local newspaper.  Published in the local newspaper basically means that it will display Jones, Tom case: 11-49944 Southern District of Florida.   If you file for bankruptcy in the Southern District of Florida then your filing will be reported in the Daily Business Review public records section.

If you are thinking of filing for bankruptcy and would like to speak with a local bankruptcy lawyer then please contact Shmucher Law, PL by calling 305.741.5553 or 954.309.5559.  We offer free consultations in our main Miami office, as well as at any of our satellite offices (by appointment) including Boca Raton, Fort Lauderdale, Plantation, and Sunrise Florida.

Many clients that I see in Florida aren’t originally from the United States, and these clients may or may not have foreign assets in their home country.  One of the questions I get asked a lot is whether or not a debtor needs to list any of their assets they own, that are NOT in the United States.  This could include foreign bank accounts, foreign businesses or even foreign real estate holdings.   The answer to that question is YES, a debtor must list all their assets whether or not they are owned within the United States or not.  When a debtor files for bankruptcy they sign under oath that the information in the bankruptcy petition is true and correct and lists all the debtor’s assets.  If a debtor fails to list an asset and the bankruptcy trustee finds out about it then 1) the debtor could lose their bankruptcy discharge or 2) the debtor could be sent to jail for attempting to commit bankruptcy fraud.

If you are thinking of filing for bankruptcy and would like to schedule a free consultation with a local Florida bankruptcy attorney then please contact Ofer Shmucher at Shmucher Law, PL.  We offer free consultations in our main Miami office as well as any of our satellite offices (by appointment) including Boca Raton, Fort Lauderdale, Plantation, and Sunrise Florida.

With a high unemployment rate in the state of Florida, many residents are having a fairly difficult time landing jobs.   These residents, without jobs, are likely also to be the same residents who have debt issues.   At least once a week I have a potential client ask me the following question:  I am currently unemployed and applying for jobs, will the filing of my bankruptcy hurt my chances of gaining employment?

Unfortunately, if you are APPLYING for a job in the PRIVATE SECTOR (non-government), then the address is Yes.  If you are applying for a job in the private sector, the employer has the right to discriminate you based on your credit/bankruptcy history.   Whether or not the employer runs a credit check on you and discriminates against you, because of your bankruptcy filing, is only determined on a case by case basis.  More likely than not, jobs in the financial sector or any job requiring entrustment with monies will likely run a background check on the potential employee.

The Bankruptcy Code has an anti-discrimination policy and it applies to government entities and current employers only.   The Bankruptcy Code’s anti-discrimination provision does not prohibit a private employer from denying employment to an individual on the ground that he is or has been in bankruptcy

If you are thinking of filing for bankruptcy in South Florida and you would like to schedule a free consultation with a local bankruptcy attorney, then contact Ofer Shmucher at Shmucher Law, PL by calling 954.309.5559 or 305.741.5553.  Shmucher Law, PL offers free consultations in any of the following office locations Boca Raton, Fort Lauderdale, Miami, Plantation, and Sunrise Florida.

One of the biggest mistakes a debtor can do, before filing for bankruptcy, is to repay debts owed to the debtors’ relatives or friends.

When a debtor files for bankruptcy a trustee is appointed in the case.  The trustee’s job is similar to that of a referee, whereby the trustee reviews the debtor’s bankruptcy schedules and makes sure everything looks normal.  The trustee also reviews the debtor’s tax returns, bank statements, and any other financial documents.  The trustee will review your financial documents to see if you have made any illegal transfers.

Under the bankruptcy code, any transfer repaid to a relative or other “insider” within twelve (12) months prior to filing a bankruptcy case can be recovered by the Trustee in that case.    That means that the Trustee can (and, depending on the amounts involved, will) sue that relative to recover the money or property repaid to them during that period.    This is known as a “preferential transfer” and the bankruptcy statute is 11 U.S.C. 547.  Furthermore the bankruptcy trustee can piggyback onto Florida state law and extend the fraudulent transfer period for an insider for upwards of four years.

Payments made to non-insiders (non-relatives) follow the same law, except the look back period for those transfers is only 90 days prior to the bankruptcy filing.

If you are thinking of filing for bankruptcy in South Florida, and would like to schedule a free consultation with a local bankruptcy attorney then please contact Ofer Shmucher at Shmucher Law, PL by calling 305.741.5553 or Read more…

One of the things that people are most scared about, when it comes to bankruptcy, is that people believe that they will never be able to obtain credit again.  They think that no one will give them a credit card, no one will give them a car loan, and finally no one will let them buy a house again.  This is completely false.  While bankruptcy does remain on your credit report for ten years, it doesn’t entirely prevent you from obtaining credit to get a credit card, a car, or a home.

A debtor is able to obtain an FHA loan for a home approximately two years after their bankruptcy discharge as long as their credit score is 650 or higher and they are able to put down 3.5% of the purchase price.

Don’t let the word “bankruptcy” scare you into believing that you will never be able to live your life again, rather think of bankruptcy as a means to obtain a fresh start.  If you are thinking about filing for bankruptcy and would like to discuss your options with a bankruptcy lawyer in Florida then please contact Shmucher Law, PL at 954.309.5559 or 305.741.5553.  We offer free consultations in Boca Raton, Fort Lauderdale, Miami, Plantation, and Sunrise Florida.

Now that it is 2011 people tend to get ready to file their taxes in hopes of obtaining a refund.  So it is that time of the year that I hear the same question asked repeatedly by clients, “If I file for bankruptcy will I have to pay taxes or a tax penalty on the debts that have been discharged?”  The answer to that question is NO.  You will not be responsible for any taxes or tax penalties for the debt you will be discharging.

However, if you choose to do debt settlement rather than to file for bankruptcy you will be responsible for the taxes on the debt you save.  Here is an example.  You owe 50k on a credit card and you settle it for 20k (a savings of 30k).  The IRS will consider the 30k savings as ordinary income and you will be responsible for the taxes on the saved amount.

The filing of a bankruptcy can help you enjoy a fresh financial start.  If you would like to schedule a free consultation to determine if bankruptcy is right for you, then please contact Shmucher Law, PL at 954.309.5559 or 305.741.5553.  We offer free bankruptcy consultations in Boca Raton, Fort Lauderdale, Miami, Plantation and Sunrise Florida.

When filing for a Chapter 7 bankruptcy in Florida the first think that an attorney looks at is the debtors income.  There are two ways to qualify for a Chapter 7, first the debtor must be under the median income (auto qualify), if the debtor is over the median income then the debtor must pass the means test.  While the debtors income is a critical part in determining their qualification for Chapter 7 bankruptcy, there is no maximum income that the debtor can have to qualify.

Besides the debtor’s income, the means test considers other factors that enable parties to qualify for Chapter 7 bankruptcy.   Debtors who have high income can qualify if they have any of the following:

1. Large family size and or other dependents (parents / grandparents that they claim on their taxes)
2. Large mortgage payments
3. Large homeowner/condo association dues
4. Car loans – two or more cars with payments or leased
5. High health insurance payments
6. High life insurance payments
7. Child care payments
8. Student tuition payments
9. Large IRS debt with a prepaid payment plan.

If a high income debtor has more than a few of the factors above then the debtor will have a good chance of qualifying for Chapter 7 bankruptcy.

If you are thinking of filing for bankruptcy in Florida and would like to schedule a free consultation in Boca Raton, Fort Lauderdale, Miami, Plantation or Sunrise Florida then give our office a call at 954.309.5559 or 305.741.5553.