Category Archives:
Bankruptcy

Two Attorneys Join Cleaveland & Cleaveland Team

We are excited to introduce Julia McLaughlin, Esquire, and Hillary Mesa, Esquire, who have recently joined the team at Cleaveland & Cleaveland, P.L.

Julia McLaughlin, Esquire, graduated from Princeton University in 1984, and from the University of Wisconsin Law School in 1987. She became a member of the Wisconsin Bar in 1987, and the Pennsylvania Bar in 1987 and handled a variety of family law matters including divorce, parenting issues, child support, and prenuptial agreements. In 1998, Ms. McLaughlin joined the faculty of Villanova Law School, where she taught legal research and writing, and in 1999, joined the faculty of Widener University Law School, where she also taught legal writing. In 2004, she moved to Jacksonville, Florida, and joined the Florida Coastal School of Law faculty where she taught a wide variety of courses including Family Law, Children and the Law, Dependency Law, Juvenile Justice Administration, Domestic Violence, and Property Law. In 2015, she became a member of the Florida Bar.

Ms. McLaughlin has published widely in the area of family law and children’s rights. Some of her publications include: Taking Religion out of Divorce, 65 RUTGERS L. REV. 395 (2013); Exploring the First Amendment Rights of Teens in Relationship to Sexting and Censorship, 45 U. MICH. J. L. REFORM 315 (2012); Crime and Punishment: Teen Sexting in Context, 115 PENN. ST. L. REV. 135 (2010); The Fundamental Truth about Best Interests, 54 ST. LOUIS U.L.J. 113 (2009); 5) DOMA and the Constitutional Coming-out of Same-sex Marriage, 24 WIS. J.L GEN. & SOC’Y 145 (2009); Premarital Agreements & Choice of Law: “One, Two, Three, Baby You and Me,” 72  MO. L. REV. 793 (2007); Litigation Funding: Charting a Legal and Ethical Course, 31 VT. L. REV. 615 (2007); and Should Marital Property Rights Be Inalienable?  Preserving the Marriage Ante, 82 NEB. L. REV. 460 (2003).

Julia joined Cleaveland & Cleaveland, P.L. in 2018, where she brings over 30 years of legal and teaching experience to the practice, and will handle family matters such as divorce (including parental responsibility, equitable distribution, alimony, child support, and related issues), paternity (including parental responsibility, child support, and related issues), prenuptial agreements, postnuptial agreements, and family law appeals; and estate planning (including wills, trusts, advance directives, and power of attorney designations) and probate matters.

Hillary Mesa, Esquire, graduated with honors from the University of Florida, where she was a Dean’s List recipient, and received her law degree with honors from the University of Florida Levin College of Law, where she was a Dean’s List recipient, a student ambassador, and received book awards in Legal Research and Child, Parent, and State.

Ms. Mesa worked as a judicial extern for The Honorable Thomas M. Jaworski and as a legal extern in the felony division of the Crimes Against Women and Children Unit of the State Attorney’s Office.

She is a member of the Florida Bar, and is licensed to practice in the State of Florida, and the Middle District of Florida.

Hillary joined Cleaveland & Cleaveland, P.L. in 2018, and will handle consumer matters such as bankruptcy, debt defense, and foreclosure defense.

Posted in Alimony, Bankruptcy, Chapter 7 Bankruptcy, Debt, Divorce, Estate Planning, Family Law, Foreclosure Defense, Injunction, Paternity | Tagged , , , , , , , , , |

Bankruptcy v. Debt Negotiation Company or Debt Consolidation Company

I regularly have clients that consult with me for bankruptcy after they have hired a debt negotiation company or debt consolidation company.  They are usually consulting with me because they are unhappy with the company they hired, and are many times, being sued by their creditors, even though they thought their debts were being handled.  Most of the regret I see from my clients relating to bankruptcy is them wishing that they chose the bankruptcy option first rather than wasting their time, money, and sanity dealing with a debt negation company or debt consolidation company.

I, Michael Cleaveland, worked as an attorney for a firm for 10 years representing creditors.  I have first hand knowledge of how creditors view these companies.  I now only represent consumers, but I took with me a wealth of knowledge from working for the creditors. Below are some important things that any person should know before choosing to hire a debt negotiation company or debt consolidation company:

  • You don’t have a “right” to settle your debts for pennies on the dollar (as I have seen advertised on TV). The creditor may choose to accept less than what you owe, but it is completely at their discretion.
  • You may be subject to a 1099(c) if you settle your debts. This basically means the portion that was forgiven may count as income to you and you may have to pay taxes on it.  There are no 1099(c) tax consequences such as this by filing bankruptcy.
  • If you hire a debt negotiation company or debt consolidation company, you are not legally protected. If the debts are delinquent, they can still bring lawsuit against you. Your creditors can simply ignore any offers made from these companies. If you file bankruptcy, you will be legally protected from your creditors.
  • Debt negotiation companies or debt consolidation companies typically have you pay a monthly amount to them, in which they save in an account. After they take their fees, they try to negotiate settlements.  However, since it usually will take many months, if not years, to save enough money to settle your debts, many consumers find themselves facing lawsuits, judgments, or even garnishment, before they are able to settle.
  • Bankruptcy is typically a cheaper option. Many of these companies charge consumers thousands of dollars in fees and do not resolve all of their debt issues.  Bankruptcy is usually much less expensive and will legally give you a fresh start.
  • Bankruptcy may be better for your credit score than negotiating your debts. In a typical Chapter 7 bankruptcy, you get a discharge of your debts about 3-4 months after you file your case.  If my clients use credit responsibly after their discharge, they typically have over a 700 credit score within 2 years after their discharge.

There are many other advantages that bankruptcy offers that debt negotiation or debt consolidation does not.  I strongly recommend that prior to making any decision, you speak to a knowledgeable bankruptcy attorney to discuss all the pros and cons based on your individual situation.  Cleaveland & Cleaveland, P.L., a law firm located in Jacksonville, Florida, offers a free consultation to discuss your options relating to bankruptcy.

Posted in Bankruptcy, Chapter 13 Bankruptcy, Chapter 7 Bankruptcy, Debt |

No HAMP? Now what? Other options to save your home from foreclosure…

The Home Affordable Modification Program, better known as HAMP, was launched by the U.S. Government in 2009 with the primary goal of helping struggling homeowners avoid foreclosure by reducing their monthly mortgage payments. As HAMP has now closed, homeowners are struggling to find options to avoid losing their home to foreclosure. If you are one of these homeowners that has been let down by the mortgage modification process or are running out of time to save your home from a foreclosure, a chapter 13 bankruptcy may be the next best option for you to consider. A chapter 13 bankruptcy can allow you to save your home from a foreclosure sale by paying back the arrearages, or the amount you are delinquent on your mortgage at the time of filing, through the chapter 13 bankruptcy plan over a period of five years. Along with the arrearages, your regular monthly mortgage payment will be paid through the chapter 13 bankruptcy plan. Upon completion of the chapter 13 bankruptcy, you will be current on your mortgage payments with the mortgage arrears paid in full, and your unsecured debt listed in the bankruptcy will be discharged.

Posted in Bankruptcy, Chapter 13 Bankruptcy, Foreclosure Defense |

Can creditors still contact me after I have filed a bankruptcy?

The constant reminder of your financial difficulties is not only annoying, but can cause severe stress and anxiety. One of the many benefits of bankruptcy, whether filing a chapter 7 bankruptcy or a chapter 13 bankruptcy, is that something called an automatic stay goes into effect. This stay automatically prohibits most efforts to collect on any debts that were obtained prior to filing the bankruptcy, which include lawsuit proceedings, wage garnishments, and harassing letters or telephone calls. If you are attempting to save your home from foreclosure, this stay can even stop or postpone sale dates on properties.

How long you have protection through this automatic stay depends on which type of bankruptcy you decide to file. When you file a chapter 7 bankruptcy, the automatic stay typically remains in effect from the day that you file the bankruptcy case to about 45 days after the first 341 Meeting of Creditors. When you file a chapter 13 bankruptcy, this stay typically remains in effect until the bankruptcy case has been dismissed, the bankruptcy case has been closed, the creditor asks the court permission to lift the stay, or the debtor has been granted a discharge.

If creditors contact you in attempt to collect on a debt that you incurred before you filed bankruptcy, they may be in violation of the automatic stay. Under 11 U.S.C. Section 362(k), it allows the imposition of sanctions where a debtor suffers from a creditor’s willful violation of the automatic stay. A willful violation of the automatic stay occurs when the creditor knew that there would be a violation of the automatic stay if they contacted the debtor, but continued to do so anyway. An award of actual damages, including attorney fees and costs, may be awarded by the Court.

Bankruptcy was created to provide people with relief. The automatic stay is only one of the many benefits of filing bankruptcy. Not only does filing a bankruptcy stop the constant harassment, wage garnishments, and lawsuits, but it also gives you the opportunity to have a fresh financial start and rebuild your credit once you receive your bankruptcy discharge.

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Posted in Bankruptcy, Chapter 13 Bankruptcy, Chapter 7 Bankruptcy, Debt | Tagged , , , , |

722 Redemption: A Valuable Chapter 7 Bankruptcy Tool

Bankruptcy Library on TableMany times consumers are overwhelmed with car loans in which they owe more than the actual value of the car.  One benefit of a chapter 7 bankruptcy is Section 722 of the United States Bankruptcy Code which offers consumers an appealing option to handle this type of situation.  Consumers can redeem the vehicle by paying the lender the value of the vehicle rather than the amount of the loan and allowing the chapter 7 bankruptcy to discharge the original loan.  The problem many consumers have with this option is that the payment to the original lender must be made in one lump sum.

The lump sum payment requirement can be burdensome for an individual filing a bankruptcy.  Many individuals have difficulty finding a creditor that is willing to lend them the necessary funds to pay the original lender while they are in the middle of a chapter 7 bankruptcy case.  722 Redemption provides a distinct alternative to alleviate this dilemma.  722 Redemption is an organization that offers loans for the purpose of refinancing vehicles specifically for people who are involved in the bankruptcy process.  This company will verify the value of the vehicle and determine if the debtor is qualified for a loan.  In the event that the debtor does indeed qualify for a loan, 722 Redemption will refinance the automobile for the determined value and pay the original lender the lump sum payment requirement.

Once the redemption process has been approved by the bankruptcy court, the original lender does not have the ability to deny the payoff.  This program is especially beneficial with credit unions.  Credit unions often cross-collateralize debt on any assets that a consumer has with the credit union.  Credit unions very commonly refuse to release the title to an automobile once it is paid off if the consumer has any other type of debt with the credit union discharged in a chapter 7 bankruptcy.  This can include but is not limited to credit cards, lines of credit, and vehicle deficiencies, leaving the consumer in a complicated position.  With 722 Redemption, this dilemma is resolved because there is a court order which prevents the original creditor from having any future interest in the automobile.

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Posted in Bankruptcy, Chapter 7 Bankruptcy, Debt | Tagged , , , , , |

The Jurisdictional Limits in a Chapter 13

Chapter 13 bankruptcy is the only chapter of bankruptcy that has limits on the amount of debt an individual can have to qualify.  Section 109(e) of the U.S. Bankruptcy Code establishes specific debt limits and limits chapter 13 bankruptcy to certain types of debtors.  These debt limits are utilized to determine whether an individual qualifies for a chapter 13 bankruptcy.

As of April 1, 2013, the chapter 13 bankruptcy debt limits were as follows: unsecured debts need to be less than $383,175.00 and non-contingent, unliquidated secured debts need to be less than $1,149,525.00.  The debt limits are changed every three years and are scheduled to be updated again on April 1, 2016.

There are two distinctly different ways in which the bankruptcy courts handle this type of jurisdictional issue.  Some bankruptcy courts will look at the debt amounts listed by the debtor in his or her initial bankruptcy petition to determine the debt total.  However, others will look at the total amount of claims that have been filed once the claims bar date has expired and any objections to claims that have been filed are concluded before they determine the total amount of debt an individual has.  There are advantages to both of these approaches depending on the exact specifics of the case.

When the court uses the initial debt amounts that are listed on a bankruptcy petition to make their determination, it is decided early on if the debt limit has been exceeded.   The biggest advantage of this method is that the debtor knows the court’s determination almost immediately which can help them to explore more suitable alternatives.

The other method – waiting until the claims bar date has passed to make a determination allows the bankruptcy estate to stay alive for a longer period of time until the bankruptcy court can determine the total amount of claims that will be allowed.  The advantage to this method is that the debtors are able to benefit from the automatic stay which helps in situations where the initial petition includes claims that may or may not be allowed once the claims process has run.

 

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Posted in Bankruptcy, Debt | Tagged , , , , |

The New Florida Foreclosure Bill and How It Affects Homeowners

In response to the increasing number of foreclosures filed in the state of Florida, state legislators have been working toward significantly reducing how long the foreclosure process lasts. This process often took several years to complete, resulting in either a trial or final hearing in front of a circuit court judge who, after hearing all of the evidence, would rule in favor of either the mortgage company or the homeowner. If the mortgage company ultimately prevailed, the circuit court judge would grant a final judgment of foreclosure and set a sale date of the home. The sale date would usually take place within one to two months of the entry of the judgment, at which point, the homeowner would be required to move from the property. 

In June 2013, a new foreclosure law was put into effect that considerably changed the foreclosure process. One noteworthy change in the law is that the mortgage company is required to certify in its complaint that they have the original note in their possession or have lost the original note. Overall, the length of time it takes to complete the foreclosure process has been shortened. The new foreclosure law also specifies that any lien holder, such as the homeowner’s association or mortgage company, can request the new expedited process or utilize the former longer process. Under the expedited process, homeowners are given less time to work toward a loan modification or settlement, and have less time to make arrangements to move from the home.

If the lien holder chooses the new expedited process, they can request from the court an order to show cause. If the court finds that all the requirements have been met by the lienholder, including verification of the complaint, and possession and right to enforce the note, it will enter an order to show cause to all defendants in the case. The purposes of the order to show cause are to set a hearing date, require defendants to file defenses prior to the hearing, and provide defendants with a list of certain rights under the new laws. Often times, the court will set the show cause hearing to take place in as little as two months following the initial complaint being filed.

The foreclosure process can be a complex and stressful process for many individuals. If you are behind on your mortgage payments and are worried a foreclosure is imminent, experienced foreclosure attorneys may be of assistance in that they can explain how the foreclosure process works, provide representation in a foreclosure lawsuit and/or discuss other options available to save your home, such as filing a chapter 13 bankruptcy.


 

 

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Posted in Bankruptcy, Foreclosure Defense | Tagged , , , , , |

Protecting Your Retirement Accounts in a Bankruptcy

There is a common misconception among many individuals that are considering filing bankruptcy. Many people are under the impression that they will lose all or a portion of the money in their retirement accounts once they file a bankruptcy. This concern is most common among individuals considering a chapter 7 bankruptcy, which can sometimes lead to the liquidation of one’s assets.

All individuals who file bankruptcy in the United States are entitled to a certain amount of exemptions that protect their real or personal property from creditors. For many individuals, the thought of having their assets “liquidated” can be very unsettling. This is especially scary for those individuals who have worked very hard to set aside a significant amount of money in preparation for their retirement.

Florida Statute 222.21 provides exemptions for specific types of retirement accounts, allowing an individual to protect retirement funds that are in accounts exempt from taxation under specific sections of the Internal Revenue Code. Some of the more common types of retirement accounts that qualify for this exemption are Roth IRAs, Traditional IRAs, 401(k) plans, 403(b) plans, and pension plans. If the money saved within these accounts is exclusively derived from retirement or pension plans, the funds may be completely protected from liquidation within a bankruptcy. Money that has been transferred or rolled over directly from one tax-exempt fund or account to another is also protected. The full balance of a qualified retirement account, annuity, pension fund, or comparable tax-exempt account is exempt under this particular retirement exemption.

 

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Posted in Bankruptcy | Tagged , , , , |

Wage Garnishment – One of the Many Consequences of a Money Judgment

Wage garnishment is one of the most common ways in which creditors collect from individuals in the State of Florida.  When the creditor files a lawsuit against an individual, one of the unfortunate outcomes can be the entry of a judgment for money damages.  Upon the entry of a judgment, a creditor can use wage garnishment as a tool to collect the money owed.

A judgment, in the State of Florida, is also enforceable for 20 years with interest accruing at a statutory rate, which is currently at 4.75 % annually.

If an individual fails to pay the money damages awarded in the judgment, creditors may obtain an order from the court allowing them to garnish up to twenty-five (25) percent of a person’s net pay.  This wage garnishment can continue until the total amount of the judgment including interest is paid in full.

Bankruptcy is one way in which an individual can stop a wage garnishment.  Upon the filing of a bankruptcy, the bankruptcy court enters an automatic stay against all creditors, which prevents the creditors from taking any further collection action, against the individual who has filed bankruptcy.  This would include preventing the action of a wage garnishment.  The automatic stay is entered in both a Chapter 7 a Chapter 13 bankruptcy.

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Chapter 13 Bankruptcy Can Save Your Home from Foreclosure

A chapter 13 bankruptcy is typically a repayment plan; however, a chapter 13 bankruptcy offers many options that a chapter 7 bankruptcy does not. One of those options is saving a home from foreclosure.

In a chapter 7 bankruptcy, the borrower must be current on his or her mortgage payments in order to keep his or her home. In a chapter 13 bankruptcy, the borrower does not have to be current, and has a choice as to how to make the past due payments.

In the chapter 13 bankruptcy, the borrower may either pay the arrearages on the mortgage through the repayment plan, or mediate and attempt to modify the mortgage entirely. Another benefit of filing bankruptcy is the ability to remove the lien of a second mortgage or other loan secured by the home, in certain circumstances.

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