Frequently Asked Questions

Frequently Asked Questions About Bankruptcy

This webpage answers some of the frequently asked questions about bankruptcy.
Frequently asked questions about bankruptcy

To file or not to file? Frequently asked questions about bankruptcy

Why choose the Rothrock Law Firm as your Cape Coral Bankruptcy Lawyer?

If you live in Southwest Florida, including Fort Myers, Cape Coral, Naples, Lehigh Acres, Bonita Springs, Estero, Punta Gorda, or Labelle, Fl, it is important to hire a local attorney who understands the local rules of the bankruptcy judges and trustees in the area.  All cases filed in Southwest Florida will be heard in Fort Myers, Fl.  Radha Rothrock has appeared before all the local trustees and judges in the Fort Myers bankruptcy system and is familiar with their specific requirements.  She has been practicing law for 20 years and has been practicing law in Southwest Florida for 21 years.  She has appeared before the state courts regularly in Lee, Charlotte, Collier, Hendry, and Glades Counties.

Do you offer a free consultation?

Yes.  Our first visit is free.

Can I keep my home if I file bankruptcy?

Yes.  If you file bankruptcy in Florida, you are allowed to keep all the equity in your home provided you have resided in the home at least 40 months before filing your bankruptcy.  If you have lived in the home less than 40 months, the amount of the equity is limited to $146,460.

Should I keep my home if I file bankruptcy?

It depends on the value of your home.  In Southwest Florida, in particular, Cape Coral, Lehigh Acres, and Golden Gate Estates, the values plummeted from the real estate boom in 2005 and 2006.  If your home is significantly under water, you are probably better off surrendering your home to the bank if you file bankruptcy.  The bankruptcy discharge will prevent the bank from coming after you for the money owed on the house.  You could then rent a house and apply for a new mortgage approximately three years after your bankruptcy discharge.

Can I choose to pay some of my credit card debts while I am in bankruptcy?

In some circumstances, yes, but you must obtain the court’s permission to do so.  In order to do so, you would have to show the court that reaffirming the debt is necessary and is not causing you undue hardship.  For example, if you are a truck driver and need a credit card for business expenses, the court might allow you to keep the credit card and keep paying on it.  Keep in mind, however, that even if the court allows you to keep the credit card and repay the debt, the credit card company can cancel your credit card anyway.  The credit card company is not obligated to extend you credit after you file bankruptcy even if you continue to make payments.

Will bankruptcy wipe out all my debts?

No.  Debts obtained as a result of fraud, embezzlement, and larceny are not dischargeable.  Child Support and IRS debts less than three years old are generally not dischargeable.  Student loans are generally not dischargeable.  If you buy luxury items within 90 days of filing bankruptcy, the debt is generally not dischargeable.

How long will bankruptcy stay on my credit report?

7 years if you file chapter 13 and 10 years if you file chapter 7

How long will it take to rebuild my credit after I file bankruptcy?

Usually 1 to 2 years after your discharge to get a decent rate on an automobile.  Usually 3 to 4 years to get a mortgage.  Please visit our page “Rebuilding Credit After Filing Bankruptcy” for tips on rebuilding credit.

How much does it cost to file bankruptcy?

There are 4 costs associated with bankruptcy:  the filing fee you pay to the court, the attorney’s fee, the trustee’s fee, and the credit counseling fee.  If you are married and filing together, you pay only one fee.  Currently, the court charges $335 for its filing fee on chapter 7 cases and $310 on its chapter 13 cases.    You must complete a credit counseling class (usually completed online) before you file bankruptcy and after you file bankruptcy.  The costs vary from $10 to $80.  Attorney fees vary from attorney to attorney.  Our fees depend on the complexity of your case.  We will provide you a quote at your consultation.  On an average, our attorney fees for chapter 7 cases run $1,900.00 and our chapter 13 cases run about $3,875.00 to $4,225.00.  In chapter 13 cases, your trustee’s fee is 10% of the total monthly plan payment.  In chapter 7 cases, the trustee takes a percentage of the amount of your recovered assets.

What are the different types of bankruptcy?

For consumers, there are 4 types:  Chapter 7, 11, 12, and 13.
In a Chapter 7 bankruptcy, you classify all your assets and debts.  You surrender or repay your secured debts.  You value your nonexempt assets.  You pay back you unsecured creditors the value of the nonexempt assets.  You will receive your bankruptcy discharge around 4 months after you file.  Click our page, Chapter 7 Attorney in Cape Coral, to learn more about chapter 7 bankruptcy.
In a chapter 13 case, you pay the amount of your disposable income to your unsecured creditors over a 3 to 5 year period.  At the end of the 3 to 5 year period, you get your discharge.  Click our page, Chapter 13 Attorney in Cape Coral, to learn more about chapter 13 bankruptcy.
Chapter 12 is similar to chapter 13 except that it is for family farmers.
Chapter 11 is filed by consumers who do not qualify the other chapters of bankruptcy because of their income or debt restrictions or for consumers who want to keep real estate investment property.  In most cases, you serve as your own trustee and pay your disposable income to your unsecured creditors for five years.  It allows you to keep you investment property and pay back what the property is worth rather than what you owe.

Will I lose everything I own if I file bankruptcy?

No.  If you file bankruptcy in Florida and you have been living in Florida at least two years prior to filing, you can keep your property that is determined to be exempt.  If you have property that is not exempt, you have to surrender it to the bankruptcy trustee or you can keep it and pay back the value of the property to the trustee over one year.  The trustee will then distribute the proceeds of your nonexempt property to your unsecured creditors.  Click or exemptions page to learn more about what property you can keep.

Should I charge up all my credit cards and then file bankruptcy?

No.  Any large purchase made within 90 days of filing bankruptcy is presumed fraudulent.  If the court determines you committed fraud, it can revoke your bankruptcy discharge.

Can I modify my mortgage while I am in bankruptcy?

Yes, you can modify your mortgage while you have an active chapter 13 case open; however, you will need the court’s permission before the modification gets approved.

Can I apply for a new loan while I have an open bankruptcy case pending?

Yes, however, you will need the court’s permission prior to approval.

Can I keep my retirement if I file bankruptcy?

Yes.  Florida is very generous concerning the amount of retirement you can keep.  Although there are exceptions, you can generally keep all of your 401k and pensions and around one million dollars in you IRA if you file bankruptcy.

If I file bankruptcy and keep my home, can I force the creditor to accept a principal reduction?

No.  If you pay the value of the property rather than what you owe on the property, you are “cramming down” the property.  Cramming down investment property is permitted in chapter 11 cases; however, cramming down your homestead is not permitted under any chapter of bankruptcy.  If you keep you home, you will have to pay your first mortgage company regardless of the value of the property.  You can, however, “strip” a second mortgage if it is wholly unsecured.

Can I partially strip my second mortgage on my home?

No.  You can partially strip a lien on investment property in a chapter 11 case but not your primary homestead.  If you have a lot of real estate that is under water and you want to keep it, visit our Chapter 11 website.  Filing a chapter 11 bankruptcy may allow you to retain your rental property at its fair market value rather than the amount you owe.  To strip a second lien on your home, the lien must be totally unsecured.

I surrendered my house in bankruptcy but the lender is foreclosing anyway.  Can they do that?

Yes.  In order for the lender to get clear title to the property if you surrender your home, they will file a foreclosure action to get clear title to the property.  They are not permitted, however, to collect money from you.  The judgment of foreclosure is as to the property only, not as to you personally.

Can I get fired for filing bankruptcy?

No.  Bankruptcy law prohibits discrimination.  A private employer is allowed to not hire a person who filed bankruptcy; however, they cannot fire a current employee because he or she filed bankruptcy.   If you work for the government, the government cannot fire you or refuse to hire you because you filed bankruptcy.  Click here for more information about government jobs.

My property is titled in my name but it really belongs to someone else.  Will the bankruptcy court take it?

Possibly.  If property is titled in your name, it is presumed to be yours.  You have to prove the property does not belong to you.
For example, you have an elderly mother.  Your name is on the bank account because she is blind.  Her social security checks get deposited in the account and you write checks to pay her bills.    In this case, you could show the court that the money belongs to her.  If you wrote checks out of the account for your personal expenses or made deposits of your money in the account, the bankruptcy court might find that the property belongs to you.  It is important to trace all the deposits and payments from the account.

How long does it take you to file my paperwork with the court?

Bankruptcy attorneys in Cape Coral, Fl differ in the length of time it takes to file paper work with the court.  The Rothrock Law Firm typically files your case within 1 to 7 days of receiving your requested paper work and retainer fee. 

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How Do I Make an Appointment with a Cape Coral Bankruptcy Attorney?  Fill out the form below or call 239-206-1948.


About Radha Rothrock

Radha Rothrock is a bankruptcy attorney in Cape Coral, Fort Myers, and Naples. Call today for your free consultation at (239) 206-1948.