How do you stop a foreclosure on your home?

There are various ways to stop a foreclosure on your home.  Unfortunately, some may be less realistic based on your situation.  The following are some of the ways to stop a foreclosure:

  • Chapter 13 bankruptcy: When a typical chapter 13 bankruptcy is filed, the automatic stay immediately goes into effect.  The automatic stay acts as an injunction against your creditors and will stop the foreclosure from moving forward.  The chapter 13 effectively allows you up to 5 years to pay back what you are behind, made through plan payments administered by a chapter 13 trustee.  The key to a chapter 13, is it must be filed before the sale date of the home set by the judge in the county foreclosure case.  You should consult with a bankruptcy attorney as soon as you are made aware of the foreclosure so he/she can explain in more detail the chapter 13 bankruptcy process.  Cleaveland & Cleaveland, P.L. offers a free consultation to discuss whether a chapter 13 would be a good option for you.

 

  • Cure the arrearage: This option is not usually realistic for most people facing a foreclosure.  If you have the available funds to bring the mortgage current, then this may be an option for you.  Even if you are working out a cure with the bank, we strongly suggest you make sure a response is filed to the foreclosure lawsuit within the time prescribed so a default is not entered against you.  Cleaveland & Cleaveland, P.L. can help you with this if you need legal representation.

 

  • Modify your loan with your mortgage holder: A mortgage modification will typically take the whole balance of your loan (including the arrearages) and create a new loan. After the loan modification is approved, the bank will typically have you on a 3 month trial period to help make sure you will pay the new loan amount.  Once the trial period is successful, the modified loan becomes permanent.  After that, they should dismiss the foreclosure case filed against you.  Since the mortgage modification process takes time, Cleaveland & Cleaveland, P.L. can help you with this if you need legal representation in the foreclosure.

 

  • Refinance with a different lender: Many times, if you have a sufficient amount of equity in your home and your credit score hasn’t dropped too low, another bank may refinance the loan to pay off the current mortgage holder that has filed the foreclosure against you. Once the old loan is paid off in the closing of the new loan, the foreclosure action should be dismissed. This also may take a sufficient amount of time to complete.  Cleaveland & Cleaveland, P.L. can help you if you need legal representation in the foreclosure.
Posted in Bankruptcy, Chapter 13 Bankruptcy, Foreclosure Defense |

How long does it take to rebuild my credit score after filing bankruptcy?

One of the biggest misconceptions about bankruptcy is the assumption that a person’s credit score will be terrible for a long time after filing bankruptcy.  In reality, bankruptcy is typically one of the fastest ways to improve your credit, other than paying off your debt within a relatively short period of time.

In many cases, it takes about 2 years after your bankruptcy discharge to rebuild your credit to over a 700 credit score.  In a Chapter 7 bankruptcy, it typically takes about 3 and a half months from the day you file the bankruptcy to get your discharge.  Many people’s credit score is higher within 6 months after their discharge than it was before they filed.

Many people receive applications for credit cards soon after their bankruptcy is discharged.  One of the best ways to improve your credit after a bankruptcy is to use credit after your bankruptcy, but responsibly.  Getting a credit card to charge your food and other normal monthly expenses, and then paying that credit card off at the end of the month, will help you rebuild your credit and help avoid the interest associated with most credit cards.  Interest on most credit cards is only charged if you don’t pay off the balance every month.

The reason why your credit improves so fast after a bankruptcy is because of 2 factors:

  • You can only file and receive a discharge in a Chapter 7 bankruptcy once every 8 years. The creditors know this.  That’s why you start getting credit card applications soon after you receive your discharge.  In the eyes of the creditors, you are typically a much lower credit risk after a bankruptcy than you were before the bankruptcy.
  • After a bankruptcy, many people are debt free. Having no debt will likely make you much less of a credit risk than you were before you filed bankruptcy.
Posted in Bankruptcy, Chapter 13 Bankruptcy, Chapter 7 Bankruptcy, Debt |

Pets Are Our Friends

In our family law practice, we are beginning to have many serious discussions regarding how the family pet will be handled when the dissolution judgment is entered. In one case, the party who felt betrayed at the end of the relationship felt entitled to keep the pup. In another case, the settlement was held up as visitation rights regarding several canine companions were ironed out. In a final case, the dog remained with the home and belonged to the party receiving the residence as part of the settlement.

Though clearly not children, family pets seem to fall into a category quite different from china and couches. Under Florida law, there is no provision for assigning ownership of the family pet and they are distributed along the lines of personal property. In a few states, California, Illinois and Alaska, the state legislatures have begun to recognize that when a family goes through divorce, issues regarding pet care, custody, and access are often emotionally fraught.

For example, California law now provides:

“The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.”

One Florida judge waded into the fray and awarded equal time sharing to the pooch parents:

Dog, Roddy: The former Husband, shall have custody of the parties’ dog “Roddy” and the former Wife, shall have visitation every other month beginning October 1, 1993. The visitation shall begin on the first day of the month and end on the last day of the month.

The husband appealed and the trial court ruling as reversed with express instructions to the trial court to “award the animal pursuant to the dictates of the equitable distribution statute.”  Until the Florida legislature amends our dissolution statute, family pets are more like furniture than friends.

Posted in Uncategorized | 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 |

Timesharing Guidelines Change in Duval County, Clay County, and Nassau County

HomeworkWe all know a Dad who has his kids every other Friday to Sunday and one evening during the week. This schedule, commonly referred to as guideline visitation or guideline timesharing, has been the standard in Jacksonville, and throughout most of the state of Florida, for many years. Over the last several years, there have been significant changes to the laws regulating divorce and parentage. Recently, the timesharing guidelines in the Fourth Judicial Circuit (Duval County, Clay County, Nassau County) have been updated. Now, absent a compelling reason otherwise, judges are awarding the non-majority timesharing parent every other Friday evening through Monday morning and one overnight every week. This new schedule, including half the summer and sharing or alternating holidays, comprises roughly 40% of the time. While timesharing guidelines are not law, they represent the judiciary’s more modern approach to the division of time between parents. The updated timesharing guidelines can be found here.

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Posted in Divorce, Family Law, Paternity | Tagged , , , , |

What is an Advance Directive?

Intensive Care MonitorPeople often think estate planning is only about what happens to their property when they die, and they forget to think of what may happen if they are to fall ill and are unable to make medical decisions for themselves. Healthcare advance directives provide your doctors, loved ones, and friends, with exactly what you want to occur should you fall ill and be unable to communicate those wishes later.

Advance directives include designations of healthcare surrogates (also referred to as healthcare power of attorneys) and living wills (also referred to as personal directives, advance health care directives, and advance decision). These directives dictate to your family how long you would like to remain on life support and what type of life support services you wish to receive in the unfortunate event those decisions become necessary. These types of decisions are best made after careful thought and counsel with your medical professionals and other people you trust.

Additionally, the decision of whether to “pull the plug” is a tremendous burden on your loved ones. When a living will is in place, your loved ones can rest assured that they will not be in the position of making a life or death decision for you. Families can take comfort in knowing that your wishes are being honored.

When asked why we think an advance directive is needed, we often remind people of the highly publicized Terri Shiavo case, where a woman’s family was destroyed trying to make medical decisions for her after she fell into a vegetative state.

For more information on life-sustaining medical treatments, please visit the following pages and talk to your doctor.

American Cancer Society
Cleveland Clinic
Web MD

It is important to contact an experienced Jacksonville estate planning attorney to assist you in preparing your estate and the proper paperwork in the event of incapacity.

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Posted in Advance Directives | Tagged , , , , |

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 , , , , |

Is it still cheaper to keep her? Alimony Reform in Florida

TheAlimony phrase “it’s cheaper to keep her” is often a reference to permanent alimony. Many people in Florida, primarily men, face the possibility of paying a large portion of their income to their spouse for the rest of their lives, in the event of a divorce. While permanent alimony can be awarded in any case, given certain circumstances, those who have been married for 17 years or more are at the highest risk.

However, Florida law makers are working to change that. In 2013, an alimony reform bill eliminating permanent alimony was passed by both houses, but was ultimately vetoed by the governor. This year, an amended version of the bill will be voted upon, and it is expected to pass.

Is it still cheaper to keep her? Maybe not for long.

The following link is to an article in the Orlando Sentinel about the upcoming vote on alimony reform: http://www.orlandosentinel.com/news/fl-alimony-reform-20150213-story.html

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Posted in Alimony, Divorce, Family Law | Tagged , , , , , , , , , |

Sanctuary! When someone runs to the courthouse for an injunction or an order of protection…

GavelTemporary injunctions (or orders of protection) can become permanent in one short hearing before a judge. The petitioner is normally the person who files, and who is seeking protection from alleged domestic violence or stalking. The respondent (also known as the defendant) is the subject of the injunction – the person from whom the petitioner is seeking protection. Together, the petitioner and the respondent are known as the parties to the action.

While some petitioners are legitimately in fear for their safety, or even in actual danger, some are simply using the system to hurt the other person, or to gain exclusive use of the home. It is important to contact a Jacksonville injunction lawyer if you are in fear for your safety, or if you have been served with a temporary injunction.

Injunctions often severely limit the respondent’s rights and freedoms. For example, many injunctions include a no contact provision. A no contact provision prohibits the respondent from contacting the petitioner, directly or indirectly. Direct contact can be telephone calls, emails, and texting, among other things. Indirect contact is simply contact with the petitioner, through a third party. Even if the petitioner initiates the contact, the respondent can be held in violation if he or she responds.

As a consequence to a no contact provision, the respondent is generally required to leave the home, if the home is shared with the petitioner. Many times the parties share children, and leaving the home usually means leaving the children. Sometimes, although not always, the judge presiding over the injunction hearing will incorporate a timesharing schedule (formerly called visitation) or child support obligation. Usually, due to the nature of the proceedings, the parties have insufficient time to gather and present evidence to the Court that is vital to the determination of a timesharing schedule that is in the best interest of the children, or calculation of child support using the actual or imputed incomes of the parties and other factors that may vastly affect the child support obligation.

Another common provision of an order of protection is the distance the respondent must stay away from the petitioner. This provision greatly impacts the respondent’s freedom, since the distance the respondent must stay from the petitioner applies to all places, including public places, and places the respondent may frequent. For example, if the petitioner and the respondent attend the same church, the respondent will likely have to find another church in order to avoid violating the injunction by being, even unintentionally, within the stated radius of the petitioner. Likewise, if the respondent finds himself or herself at the same grocery store as the petitioner, the respondent must leave to avoid violating the injunction.

A lesser known provision of most injunctions is the prohibition of firearms. Many times the respondent is required to turn over his or her firearms to the police. Although many injunctions are not conducted in the criminal court, a public record is made of the injunction, which could affect one’s ability to obtain employment or future relationships.

Violating an injunction, or merely being accused of violating an injunction, can have serious consequences, such as potential incarceration.

It is very important that anyone in fear of his or her safety, as well as anyone served with a temporary injunction, contact a Jacksonville injunction attorney immediately to help ensure his or her rights are protected.

 

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Posted in Family Law, Injunction | Tagged , , , , , , |