Lanigan & Lanigan, P.L.
831 W. Morse Blvd., Winter Park, Florida 32789
407-740-7379
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Bankruptcy
Before a creditor can collect from a debtor who has filed bankruptcy, the creditor must file a claim in bankruptcy court. Generally, after the debtor files he or she provides a schedule with the petition, listing all creditors and the amounts due to those creditors. If the debtor omits a certain creditor, the amount owed will not be discharged in the bankruptcy. After the debtor provides a schedule of debts, the court sends a proof of claim form to all listed creditors. Generally the creditors attend a “341 meeting” where they either accept or dispute the amount the debtor listed. All chapter 7 and 13 debtors must return the proof of claim form within 90 days of the 341 meeting. On the other hand, chapter 11 creditors only need to return if they object to the amount or how they are classified by the debtor. If the trustee or debtor in possession agrees with the claimed amount, the creditor has a claim in that amount. If the trustee disagrees, he brings a contested matter before the court to determine the proper amount of the claim. Once all claim amounts are determined, the creditors are paid based on secured status and priority. Many courts are split on when the actual claim arises or becomes legal right to sue for the debt. However, most courts use either the “relationship” test or the “fair contemplation” test. The relationship test provides a claim only arises when there is a pre-petition relationship between the parties and the conduct giving rise to liability occurs pre-petition. Conversely, the fair contemplation test provides that a claim arises...
Bankruptcy
Under a Chapter 13 plan, the debtor makes payments based on the type of claim by the creditor. Each creditor’s claim is classified into three types of categories: secured, priority, and unsecured. As such, it is important to understand the different rules for claims based on their classifications. Here is a basic outline for the treatment of creditors in a Chapter 13 case. Secured Claims: The debtor has three alternatives for treatment of secured claims. First, the debtor is allowed to treat secured creditors consensually and provide them equal treatment. This means each secured creditor is treated the same and can only receive different payments if he agrees to a lesser amount. Second, the debtor is allowed to pay the claim and preserve the lien while payment is pending. This means the creditor becomes entitled to foreclose on the full balance only if the debtor defaults before completion of the Chapter 13 plan. Third, the debtor is allowed to surrender the collateral to the holder of the claim. This means that the secured claim is disposed and the debtor’s obligation to pay is terminated. Each alternative is an option decided by the debtor under a Chapter 13 plan. Priority Claims: All priority claims are required to be paid in full by deferred cash payments unless the holder agrees to different treatment. Thus, the order of priority is not as directly relevant in a Chapter 13 case as it is in chapter 7. Unsecured Claims: The debtor is allowed to divide unsecured claims into classes. However, the required amount to be paid on each unsecured claim must be no lower...
Bankruptcy
Generally, something insurmountable has happened to individuals, families or businesses with overwhelming debt that causes them to file bankruptcy. Maybe there was a divorce or a death in the family or a business collapse. Often, bankruptcy begins due to high medical bill. According to NPR, illness not covered by medical insurance causes medical bills to pile up and bankruptcy follows. Consult with Orlando bankruptcy lawyers Eric Lanigan and Roddy Lanigan who provide clients legal representation with a personal touch. You’ll find out that your scenario is different from everyone else’s, however, there are several commonalities. Washington state researchers found that cancer patients were four times more likely to declare bankruptcy than the general population. Looking in-depth at the types of cancer associated with bankruptcy there were several that were more expensive to treat: Lung Thyroid Leukemia/lymphoma Uterine Colorectal Some bankruptcies were filed after paying for cancer treatments which reached as much as $300,000. Generally, something insurmountable — like cancer — has happened to individuals, families or businesses to cause overwhelming debt. Roddy Lanigan and Eric Lanigan handle bankruptcy in Orlando and Central Florida every day. Contact Eric and Roddy Lanigan, of Lanigan and Lanigan, P.L. Set an appointment to come into the Winter Park office and tell us what’s happened to you. They’ll find out what your options are and advise you on how to determine the best result for your...
Bankruptcy
Among the many powers of the trustee, section 547 allows the avoidance of transfers that are fully effective outside of bankruptcy. Generally, non-bankruptcy law permits the preferential treatment of a creditor, however the policies of bankruptcy law does not allow some transactions to occur. The basic purpose is to identity transfers that illegitimately prefer a specific creditor over others and disrupt the collective process of bankruptcy. Identifying Preferential Transfers is Lawyer’s Job However, unlike fraudulent transfers, preferential transfers do not require bad faith or knowledge. Thus, it is important to be able to identify preferential transfers because it allows the trustee to reverse certain transfers that occurred before the filing of the bankruptcy petition. To Be Avoidable the Transfer Must Satisfy Every One of the Following Elements: First, there must have been a transfer of interest in property of the debtor to or for the benefit of a creditor. “Transfer” is defined in broad terms and includes the act of perfecting a security interest. But the main point is that the creditor must have benefitted from something of value from the debtor. Second, the transfer must have been on account of antecedent debt. The term “antecedent” generally refers to debt owed by the debtor before such transfer was made. So, if the debt arose before the transfer was made, it is antecedent. Third, the debtor must have been insolvent at the time of the transfer. To determine insolvency, most courts use the balance sheet test which is when liabilities exceed assets at fair valuation. Fourth, the transfer must have occurred within 90 days before the filing of the petition....
Bankruptcy
Creditors Have a Way Around Things Even though the automatic stay kicks in as soon as you file for bankruptcy, it is common for some creditors to apply for relief from the stay. Often applications for relief from stay are made immediately after the petition is filed, but they could arise at any time during the case. If the court grants relief, a creditor may continue efforts to collect on any unpaid debt which may cause problems for the debtor. At Lanigan and Lanigan, P.L., we will continue to work with you throughout your case and make sure you are treated fairly when creditors attempt to collect from you. If you have filed bankruptcy and are having problems with creditors, contact bankruptcy attorney Roddy Lanigan in Winter Park, Florida. At Lanigan and Lanigan, we will make sure that throughout the bankruptcy process you understand the procedures and are treated with respect. Four Forms of Relief As such, section 362(d) sets out four different forms of relief from the automatic stay: termination, annulment, modification, or conditioning. This allows the court to provide the most appropriate form of relief under the circumstances of the case. Termination of the stay lifts it completely and allows the creditor to commence or resume the suspended activity. However, termination ends the stay only after the court grants the relief, so it does not validate prior violations of the stay. Annulment terminates the stay retroactively which means the stay is treated as if it was never in effect. This means that prior acts that would have been deemed a violation of the stay are allowed and...
Bankruptcy
Provide All Financial Facts Very Carefully There are important principles for homeowners divulging financial information and facts during bankruptcy. Even a small mistake in estimating your equity or applying a homestead exemption could cost you your home if you’re found guilty of bankruptcy fraud. Filing for bankruptcy for the average homeowner can be confusing and even scary at times so it is important to talk to your bankruptcy attorney if you have any concerns or are confused. Bankruptcy attorneys Eric Lanigan and Roddy Lanigan, of Lanigan and Lanigan want to help you understand the process and will discuss procedures and strategies to help you keep what is legally yours. There are some essential principals to keep in mind if you are worried about your home within a bankruptcy case. Keeping Your Home in a Chapter 7 In a Chapter 7, you can keep your home unless your equity exceeds the homestead exemption by about 10% or more. The amount of your homestead exemption usually determines whether or not you will lose your home in bankruptcy. If you are behind on payments and you file bankruptcy, the court will usually allow the lender to proceed with foreclosure, upon request. However, the lender must prove that it is the correct party making the request so if the mortgage has been resold or repackaged it may be hard for them to prove this. Mortgage Payments Continue Most of the time you will have to continue making mortgage payments during bankruptcy to avoid foreclosure. If you fall behind on your mortgage payments, the Chapter 7 automatic stay won’t prevent foreclosure. Mortgage modification generally requires you to...
