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Florida Bankruptcy Rules: What you must know before filing for Bankruptcy

Florida Bankruptcy Rules: Here is some information that you must know before you file for Bankruptcy.

First, there is a new bankruptcy law that took effect in October, 2005. This new law change the Florida Bankruptcy Rules (and the rules nationwide), but it did not eliminate your right to bankruptcy protection.

The new bankruptcy law requires all debtors to fulfill two education requirements: a credit counseling course prior to filing and a financial management course before obtaining a discharge. Failure to complete either of these courses and file the appropriate certificates with the court will prevent a successful bankruptcy. The Chapter 13 Trustee will offer the required courses to Chapter 13 debtors, but Chapter 7 debtors are required to take the courses on their own. All bankruptcy education courses are available in person, by phone, or over the internet and are approved for the district in which you are filing. Visit my page regarding Bankruptcy Resources for more information on where you can take these classes.

Any person residing, domiciled, or having property or a place of business in the United States may file Chapter 7. A business may also file a Chapter 7. The new bankruptcy law includes a "means test" which applies an income vs. expense test in order to file Chapter 7 bankruptcy. There are currently no minimum or maximum income limits or other income requirements or limitations for people whose unsecured debts are primarily non-consumer debts such as investment liability, business losses, taxes, or student loans.

Chapter 7 Bankruptcy vs. Chapter 13 Bankruptcy

Chapter 7 bankruptcy is the most common type of bankruptcy and is often referred to as a "liquidation bankruptcy." In Chapter 7, all of the debtor's assets, other than those types of assets specifically exempt from liquidation by statute, are turned over to a bankruptcy trustee for sale. Sale proceeds, if any, are distributed among the creditors. Most Florida Chapter 7 debtors have little non-exempt personal property because of Florida's liberal exemption laws. Chapter 7 bankruptcy is used to eliminate, or discharge, primarily unsecured debts such as credit cards or medical bills. Chapter 7 does not eliminate secured debts, such as vehicles (unless the secured item is surrendered). Chapter 7 will not save a house from foreclosure nor a car from repossession if you are delinquent in payments. Under the new bankruptcy law, only people who pass the "means test" may file a Chapter 7 bankruptcy. People who fail the means test have to file Chapter 13 bankruptcy. The means test is a complicated mathematical formula.

Chapter 13 bankruptcy results in a plan to repay all or part of your debt, but it is not designed to discharge or eliminate most debts. Chapter 13 is used most often to save a house from a foreclosure sale. Chapter 13 is also useful to eliminate some IRS debt and to establish an affordable plan to pay IRS debt that cannot be eliminated. Chapter 13 bankruptcy is available to debtors with regular income. A business cannot file Chapter 13. In addition, there are upper limits on the amount of the individual's secured and unsecured debts in Chapter 13 cases.

Filing Bankruptcy in the Middle District of Florida, Orlando Division

The Orlando Division accepts bankruptcy filings from individuals who reside or are domiciled in one of several central Florida counties including Orange County, Seminole County, Volusia County, Lake County, and other surrounding counties. Any Florida resident can file bankruptcy in Florida. If you file bankruptcy in Florida, however, you can only claim Florida's asset exemptions if you have resided in Florida for the previous two (2) years. Otherwise, you must use exemptions of the state where you previously lived for two years or, in some cases, the default set of federal bankruptcy exemptions.

Filing Bankruptcy as a married couple

Married debtors can file a joint bankruptcy petition for a single filing fee, and most attorneys charge the same legal fee for joint cases as they do for individual cases. Married couples who are jointly liable on most debts should file a joint bankruptcy. On the other hand, if only one spouse is liable on most of the debts, the indebted spouse may file an individual bankruptcy, and in most cases, the individual debtor's bankruptcy will have no adverse effect on the non-filing spouse.

Hiring an Attorney to File Bankruptcy

Bankruptcy law does not require that you hire an attorney to prepare a bankruptcy petition or to represent you in your bankruptcy case. If you enjoy doing things yourself, or if you really cannot afford an attorney, you can find forms on the internet needed needed to file your own petition. However, bankruptcy is a complicated area of the law, and the bankruptcy law gives no special treatment to debtors who file their own petition. The new bankruptcy law makes filing bankruptcy substantially more complicated and the practice of bankruptcy law is therefore more specialized. The financial risk of filing your bankruptcy incorrectly under the new bankruptcy law is much greater than the amount of a reasonable fee paid to a bankruptcy attorney.

Fees for hiring a Bankruptcy Attorney

In the past, most consumer bankruptcies were relatively simple and legal fees were low. The new bankruptcy law increases the amount and complexity of legal work required to prepare a bankruptcy petition and successfully complete a filing, and as a result, legal fees are higher than they used to be. Also, the amount of work and fees will vary according to the debtor's income level. As a general guideline, a debtor below Florida's median income should not have to pay more than $1,700 in legal fees for a simple Chapter 7 bankruptcy. The court charges a $299 filing fee, and there may be other costs for financial education required by the bankruptcy law. A debtor with income above Florida's median income will usually have to pay $300 to $500 more as additional paperwork is required. It is possible, but difficult, to file bankruptcy without the help of an experienced bankruptcy attorney.

Chapter 13 cases are more complicated, and legal fees are higher. The Orlando judges expect and approve legal fees of approximately $3,500 (in addition to the filing fee) to file and complete a standard Chapter 13 case. If your Chapter 13 case involves a wholly-owned business, or other complicated legal issues, legal fees will be higher. The good news is that most attorneys require a down payment of approximately $1,500 to $2,500 (plus the filing fee) to prepare and file a Chapter 13 case. The balance is paid through the Chapter 13 plan over a period of several months.

What next?

If you have questions about filing for Bankruptcy in Florida or wish to speak with Orlando Bankruptcy Attorneys about your legal options, please contact our office to schedule a consultation. You may reach us at (407) 839-4340.

Ask Us a Question

Law Offices of James W. Hart
809 Irma Avenue, Suite 3
Orlando, FL 32803

Phone: 407-839-4340
Fax: 407-386-7474

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