Elizabeth Carlin P.A - Miami Attorney

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) added significant hurdles that a potential debtor must pass before filing for Bankruptcy. However, despite the changes in the law, most residents are still eligible to file a Chapter 7 Bankruptcy (“fresh-start”) petition. Under this type of Bankruptcy, depending on the income to debt ratio and other means tests analysis, a debtor can cancel most or all debts without having to repay them. Under Florida law, these include: unsecured debts, exempt personal property up to $1,000.00 wage for the head of household and homestead property provided that the homestead falls within the exemption.

If a resident does not qualify for a Chapter 7 Bankruptcy, then a resident can file a Chapter 13 Bankruptcy. A Chapter 13 Bankruptcy provides a form to repay debts over a period of time while the debtor gets his/her temporary financial situation under control. Chapter 13 Bankruptcy is the best alternative for a debtor trying to avoid foreclose of a residence, for a debtor with substantial nonexempt property and assets and who wishes to keep those assets. Also, unlike a Chapter 7 Bankruptcy, a Chapter 13 allows, under some situations, for an automatic stay of creditors for both the debtor and co-debtors of the debt. This is important to consider when there is substantial debt in the your spouse’s name and yours. Chapter 13 automatic stay stops creditors from attempting to collect debts outside the Bankruptcy court system so that all debts can be handled and solved effectively and under one umbrella.

What does filing for Bankruptcy do for you?
As soon as the application for Bankruptcy is filed, there is an automatic stay for collection of debt (no more harassing phone calls or collection attempts), enforcement of judgments, court proceedings where the debtor is the defendant, or enforcement, creation or perfection of liens against the estate or property of the debtor to name a few.

As you can see, the Bankruptcy Law has many intricacies that cannot be explained in detail, since each individual case will fall under different provisions and exemptions of BAPCPA. This information is just to provide a brief nutshell of some of the questions you may be asking yourself as you consider filing for Bankruptcy. Please call me for a free consultation so we can discuss your case.