The Cape Coral Bar Association has recently elected the following members to its Board of Directors: President, Steven E. Martin of the Martin Law Firm, P.L.; Vice President, Steven K. Teuber of Sasso & Teuber, P.A.; Treasurer, Thomas Shipp of Thomas E. Shipp, Jr. & Associates, PA; and, Secretary, Lisa A. Musial of Musial & Musial Co., LPA.
The mission of the Cape Coral Bar Association is to promote the highest professional and ethical standards in the legal community and to provide educational resources in support of that goal. According to Board President, Steven E. Martin, the main focus of the association is to keep its members informed of current affairs affecting the law and the public in the State of Florida, thereby serving the best interests of their clients. “We are committed to promoting professionalism within the Cape Coral Bar,” he said.
Steven E. Martin brings to the Cape Coral Bar Association a strong background in leadership and business. He has extensive business experience with both start-up companies as well as established firms in the technology and entertainment industries. Martin has worked for Sony Music and also founded MegaDVD.com an online DVD retailer. Martin sold MegaDVD to the eUniverse Network now known as Intermix Media, the company that created the popular internet website MySpace, a subsidiary of News Corporation. As Director of Business Development for eUniverse, he helped pioneer many successful direct marketing techniques for the company generating millions of dollars in revenues and thousands of satisfied customers. Prior to attending law school, he was a Talent Manager Trainee at Michael S. Ovitz’s Artist Management Group in Beverly Hills, California where he worked in the motion picture literature department. He received his undergraduate degree in business administration from the University of Florida Warrington College of Business and also received his law degree from the University of Florida Levin College Of Law. The Martin Law Firm offers services in estate planning, probate administration, family law and divorce, and business services.
Steven K. Teuber is engaged in private practice. He serves on many community and civic boards and associations, including the Lee County School Board, District 4, and the Lee County Commissioners Task Force. He received his Juris Doctor degree from the Detroit College of Law.
Thomas E. Shipp is the President of the law firm of Thomas E. Shipp, Jr. & Associates, P.A. and managing partner of Omni One Title Services, LLC. He is Chairman of the Cape Coral Chamber of Commerce, Director of the Cape Coral Chamber of Commerce Foundation and President-Elect of the Rotary Club of Cape Coral. He graduated with a Juris Doctor degree from St. Louis University.
Lisa A. Musial concentrates on real estate and business transactions, estate planning, family law and civil litigation. She received her Juris Doctor degree from the Thomas M. Cooley Law School in Lansing, Michigan.
Disclaimer: Statements made in this video are opinion only and for entertainment/educational purposes only.
A recent development arising from the collapse of the housing market has been the rapid increase in the real estate industry practice known as short sales. As more and more homeowners find themselves in the precarious position of owing more on their homes than what they are currently worth, many homeowners have begun to consider whether taking part in a short sale might be more beneficial than going through with the normal foreclosure process or filing for bankruptcy protection. Although for some individuals a short sale might appear more beneficial than other traditional options, in many cases there are significant drawbacks to taking part in a short sale, and a host of problems that the seller does not discover until later. Before you proceed with a short sale you should consider what is discussed in this article and ask critical questions of the people who are proposing this transaction to you.
In a real estate short-sale, the struggling homeowner sells his or her home for less than what is owed in hopes that the lender will accept this amount in satisfaction of the mortgage debt.
Lenders are likely to agree to a short sale only where the homeowner appears to be unable to continue making payments, and only where the property’s value is less than the mortgage balance. The difference between what is owed and the selling price is known as a “deficiency.” A short sale is really only beneficial to a homeowner if he can receive a guarantee from the lender that he will not be liable for the deficiency.
At first glance this all seems very beneficial to the seller. He has sold his home, avoided foreclosure, and received a release from his underwater mortgage. However, at this point there are a string of complicated unforeseen problems that might arise. A lot of times the seller will be surprised to realize that he is still liable for the unpaid balance owed on the mortgage. When a short sale occurs, the bank will almost always try to get the homeowner to sign a promissory note agreeing to pay back the deficiency.
If you decide to take part in a short sale you need to make sure that you will not only be released from the mortgage, but released from personal liability as well. In Florida, if a lender is able to get a deficiency judgment, they can garnish your wages and levy your bank accounts.
If you take part in a short sale, you need to make sure that the lender agrees to not pursue a deficiency judgment, since you are helping them out by not extending the foreclosure proceeding. The trick is that many lenders do not readily forgive deficiencies. Anyone who tells you that this regularly happens is not giving entirely accurate information.
Many homeowners are also surprised to learn that a short sale can carry the same devastating impact on their credit score as a foreclosure. In many cases a short sale is also more damaging to your credit score than filing for bankruptcy. Since you are technically breaching your contract, the lender has the right to report that you did not pay the balance in full. If your credit is in good standing at the time of the transaction, it is not unheard of for your score to drop 200 points as a short sale is considered a serious delinquency. Although a short sale is potentially devastating to your credit score, most creditors see short sale sellers as being less risky than debtors who have gone through foreclosures.
There are also a host of serious and complicated tax issues that are associated with short sales. One of the benefits of filing for bankruptcy protection is that you are established to be insolvent which means that any debt forgiveness received should not be considered income or a taxable event by the IRS. If you get debt discharged as part of bankruptcy, you do not owe taxes on the debt forgiveness. This is not always the case with a short sale as the IRS considers the amount of the debt that you didn’t pay as taxable income. The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principle residence. However, determining eligibility and becoming eligible for relief under this Act is very complicated, and should not be undertaken without the assistance of an experienced tax attorney. Additionally, debt forgiveness on a second home or investment property will result in taxable income.
The fundamental purpose of bankruptcy is to give an insolvent debtor a fresh financial start in life. By entering into a short sale transaction that does not conclusively resolve the debt, you are not solving your financial problem. You are delaying your financial “reset” which may not be a wise course of action. Furthermore, based on our experience consulting with clients, a short sale takes, on average, six months to accomplish. In many cases by the time the bank agrees to a short sale, the buyer has already left the transaction, and the homeowner is right back to where he started. Also, if there is more than one mortgage on the home, a short sale is even more difficult to accomplish since all the lenders have to agree to the transaction. At a minimum prior to entering into a short sale transaction you should ask yourself whether the issues raised above have been resolved.
At the Martin Law Firm, we understand that the current economic conditions have made it difficult for many families to afford their house payments. It is important to keep in mind that there are a variety of options available to homeowners who are behind in their mortgage payments and facing probable foreclosure. It is also important to understand that every situation is different, and in some cases taking part in a short sale might indeed be the best option for the homeowner. There are advantages and disadvantages for each option and before deciding on a course of action, it is important for the homeowner to contact an experienced attorney so that they can make the best decision for their situation.
During the last decade people of all ages have begun to utilize text messaging, email, internet browsing, or gaming features of their cellular telephones. Many people are using these features while operating a motor vehicle.
Additionally, many employees are using these features while working and driving. The use of these features increases the risk for vehicular crashes. Specifically, the use of a cellular phone has been tied to a four times greater chance of vehicle crash causing serious injury.
Florida does not currently have laws that regulate or prohibit the use of cellar devices while driving a motor vehicle. However, there is discussion of a cellular telephone regulation being passed in the upcoming legislative session.
It is required, though, that the driver of a vehicle operate in a “careful and prudent manner… so as not to endanger the life, limb or property of any person.” Fla. Stat. § 316.1925 (2010). An employer can be held liable for the actions of an employee when they are acting within the scope of employment.
Therefore, an employer may be held liable for an employee who has caused a crash while working and texting, checking email, or just talking on a cellular telephone. The employer can even be held liable for their employee’s actions if it is against the employer’s policy if they have not enforced this policy, or otherwise knew or should have known the employee was violating this policy.
Driver’s have a responsibility to operate their vehicle in a manner which does not endanger those around them. A driver who is distracted because they are using their cellular phone is not following this duty.
If you have been injured in a vehicle crash because another driver was distracted by their cellular telephone it is important that you consult with an attorney. It is also important that all drivers remember that driving is a serious responsibility and that it requires all of our full attention. When driving please do not use your cellular telephone for any purpose.
Dustin Butler’s practice focuses on Personal Injury Litigation, Civil Litigation, and Family Law.
Estate Administration is the process by which a decedent’s total estate, which includes both probate and non-probate assets, is settled. Probate assets are properties that were owned by the decedent that were not owned “jointly” with survivorship rights by another. Non-probate assets are property held in a revocable trust, joint assets, life insurance policies, retirement accounts, annuities, homestead property, automobiles, boats, etc. Some assets do not go through probate but are considered part of the estate for federal estate tax purposes, therefore if an estate is taxable, a Form 706 must be filed.
Real estate, on the other hand, almost always requires some sort of probate or other legal steps to be taken after the owner dies. This is because title to real estate is based upon a “chain of title” in the county records, and title insurers want to be sure exactly who inherited the property without requiring an order of probate court.
In Florida the types of Probate procedures are:
Summary Administration can be utilized if the value of the estate is $75,000.00 or if the decedent is dead for more than two years. The persons who receive the estate assets remain liable to creditors of the decedent for two years after date of death unless a Notice to Creditors is published.
Formal Administration is required for estates involving more than $75,000.00. It is a court supervised proceeding where a will is admitted, a personal representative is appointed, Notice of Administration is sent to interested persons (surviving spouse, beneficiaries, etc.) and a Notice to Creditors is published to identify unknown creditors and sent to all known creditors. After the expiration of ninety days, creditors who fail to file a Statement of Claim lose their right to collect on the decedent’s debt. Assets are collected, debts and taxes are paid and after the distribution of Estate assets is made the Estate is closed and the personal representative is relieved of all duties and liabilities to the Estate.
All of a decedent’s assets together make up the decedent’s estate. For estate tax reporting purposes the IRS defines estate as the total collection of a decedent’s assets whether or not they pass through probate. After an estate’s assets have been valued, if the decedent’s gross estate exceeds the federal estate tax credit exemption amount, (for 2008, Two Million dollars ), then a Form 706 (Estate Tax Return) must be filed with the IRS and a copy forwarded to the Florida Department of Revenue.
Your estate plan should be based on your desires, family situation, estate size, and on applicable law, at the time the plan is devised and the will is executed. A plan that assumes the occurrence of particular future events may produce undesirable results if the planned future events do not occur. For example, a simple will may be sufficient to handle your estate planning needs but a change in your family or financial situation will have a significant impact on your plan. Therefore, we strongly recommend a periodic review of your estate plan in order to keep abreast of changes in both the law and your own personal situation.
After you’ve submitted your Free Bankruptcy Calculator, please take the time to gather together the following, which will be necessary for your first consultation:
- Proof of income for the last 6 months: Please bring pay stubs from work or proof other income, government benefits, unemployment, social security benefits, pensions, workers’ compensation and child support.
- The value of your vehicles and a statement of your payoff amount to the lender.
- Most recent credit card statements or a recent credit report.
- Any judgment or garnishment that has been issued against your personal finances.
- Your last 6 months of bank statements from all of your accounts.
- Your last year’s income tax return with attachments: You will be required to provide all of your income tax information from the past 3 years, including W-2s, 1099s, and all other attachments.
- Payoff statements for your mortgage, and missed payment statements, if any.
- Foreclosure documents.
Martin Law Firm is committed to assisting people with their debt problems, and helping them file for Bankruptcy relief under the United States Bankruptcy Code.
One of the underlying themes of the bankruptcy laws in Florida is that a debtor should be allowed a “fresh start” after successfully completing the bankruptcy process. Consistent with this theme has been the development of Florida’s bankruptcy exemptions. When an individual files for bankruptcy, a bankruptcy estate is created. When an item is claimed as exempt, in essence that item is removed from the bankruptcy estate and is no longer available to satisfy the claims of the creditors.
Many people go into the bankruptcy process terrified that they will lose their home, cars, or other personal property. Exemption statutes permit a debtor to keep a certain amount of property, and are one way that individuals can protect their assets when they file for a Chapter 7 or 13 bankruptcy.
Although the Federal bankruptcy law provides a list of uniform exemptions, it allows for individual states to opt out of these exemptions. Florida has taken advantage of this provision and has developed its own exemptions independent of the bankruptcy code. In order to be eligible for Florida’s bankruptcy exemptions, an individual needs to have been a permanent resident of the state of Florida for two years immediately preceding the bankruptcy filing date. If you have not been a permanent Florida resident for this time period, your bankruptcy exemptions will be those from the state in which you were previously domiciled.
Florida is considered by many to have generous bankruptcy exemptions. The most notable of which is Florida’s Homestead Exemption. Guaranteed in the state constitution, with some exceptions, Florida has an unlimited homestead exemption which allows you to keep your home out of the bankruptcy estate. In order to qualify for this exemption, you must have owned your home for more than 1,215 days. If you have not owned your residence for this amount of time, Florida still allows you to claim this exemption, however this amount is limited to $136,875 of equity per person. If a married couple files together, and they both are on the deed to the house, this amount is doubled. The Homestead Exemption, however, is limited to homes that are situated on a ½ an acre of land if you live in a municipality or 160 acres if you live outside of a municipality.
Florida law also provides for an automobile exemption which allows you to keep $1,000 worth of equity in a vehicle. There is also a general exemption which can be applied to any of your personal property. The value of this exemption depends on whether you take advantage of the Homestead Exemption or not.
If you use the Homestead Exemption to keep your home, you are limited to $1,000 of personal property per person. However, if you are surrendering your home, you are given an additional exemption of $4,000 for a total exemption of $5,000 for personal property.
Our clients are often surprised to learn that a lot of other property interests are also exempt from the bankruptcy estate, and thus protected from creditors. Certain types of life insurance policies along with retirement plans might be exempt from the bankruptcy estate. With some exceptions, this includes 401k, IRAs, and most pension plans. Bankruptcy laws can also prevent creditors from seizing your retirement, disability, and other types of government assistance that you might receive in the future.
Although Florida does have generous bankruptcy exemptions, in many cases there will be non-exempt property. The non-exempt property becomes part of the bankruptcy estate and a trustee will be appointed to administer it. The non-exempt property that has any value will then be sold and repaid back to the creditors.
Applying exemptions correctly is one of the most important aspects of preparing a bankruptcy petition. At the Martin Law Firm we analyze every case carefully in order to maximize the amount of property that you are allowed to keep under the bankruptcy laws. Making sure that you receive the maximum amount of exemptions is just one of the ways that we can protect your assets when you file for Chapter 7 or Chapter 13 bankruptcy.
Bankruptcy is a choice that may help if you are facing serious financial problems. You may be able to cancel your debts, stop collection calls, and get a fresh financial start. Bankruptcy can help with some financial problems, but does not guarantee you will avoid financial problems in the future. If you choose bankruptcy, you should take advantage of the fresh start it offers and then make careful decisions about future borrowing and credit, so you won’t ever need to file bankruptcy again!
How Long Will Bankruptcy Stay on My Credit Report?
The results of your bankruptcy case will be part of your credit record for ten (10) years. The ten years are counted from the date you filed your bankruptcy.
This does not mean you can’t get a house, a car, a loan, or a credit card for ten years. In fact, you can probably get credit even before your bankruptcy is over! The question is, how much interest and fees will you have to pay? And, can you afford your monthly payments, so you don’t begin a new cycle of painful financial problems.
Debts discharged in your bankruptcy should be listed on your credit report as having a zero balance, meaning you do not own anything on the debt. Debts incorrectly reported as having a balance owed will negatively affect your credit score and make it more difficult to get credit. You should check your credit report after your bankruptcy discharge and file a dispute with the credit reporting agency if this information is not correct.
Which Debts Do I Still Owe After Bankruptcy?
When your bankruptcy is completed, many of your debts are “discharged.” This means they are canceled and you are no longer legally obligated to pay them.
However, certain types of debts are NOT discharged in bankruptcy. The following debts are among the debts that generally may not be canceled by bankruptcy:
- Alimony, maintenance, or support for a spouse or children.
- Student loans. Almost no student loans are canceled by bankruptcy. But you can ask the court to discharge the loans if you can prove that paying them is an “undue hardship.” Occasionally, student loans can be canceled for reasons not related to your bankruptcy when, for example, the school closed before you completed the program or if you have become disabled.
- Money borrowed by fraud or false pretenses. A creditor may try to prove in court during your bankruptcy case that you lied or defrauded them, so that your debt cannot be discharged. A few creditors (mainly credit card companies) accuse debtors of fraud even when they have done nothing wrong. Their goal is to scare honest families so that they agree to reaffirm the debt. You should never agree to reaffirm a debt if you have done nothing wrong. If the company files a fraud case and you win, the court may order the company to pay your lawyer’s fees.
- Most taxes. The vast majority of tax debts can not be discharged. However, this can be a complicated issue. If you have tax debts you will need to discuss them with your lawyer.
- Most criminal fines, penalties and restitution orders. This exception includes even minor fines, including traffic tickets.
- Drunk driving injury claims.
Do I Still Owe Secured Debts (Mortgages, Car Loans) After Bankruptcy?
Yes and No. The term “secured debt” applies when you give the lender a mortgage, deed of trust, or lien on property as collateral for a loan. The most common types of secured debts are home mortgages and car loans. The treatment of secured debts after bankruptcy can be confusing.
Bankruptcy cancels your personal legal obligation to pay a debt, even a secured debt. This means the secured creditor can’t sue you after a bankruptcy to collect the money you owe.
But, and this is a big “but,” the creditor can still take back their collateral if you don’t pay the debt. For example, if you are behind on a car loan or home mortgage, the creditor can ask the bankruptcy court for permission to repossess your car or foreclose on your home. Or the creditor can just wait until your bankruptcy is over and then do so. Although a secured creditor can’t sue you if you don’t pay, that creditor can usually take back the collateral.
For this reason, if you want to keep property that is collateral for a secured debt, you will need to catch up on the payments and continue to make them during and after bankruptcy, keep any required insurance, and you may have to reaffirm the loan.
What Is Reaffirmation?
Although you filed bankruptcy to cancel your debts, you have the option to sign a written agreement to “reaffirm” a debt. If you choose to reaffirm, you agree to be legally obligated to pay the debt despite bankruptcy. If you reaffirm, the debt is not canceled by bankruptcy. If you fall behind on a reaffirmed debt, you can get collection calls, be sued, and possibly have your pay attached or other property taken.
Reaffirming a debt is a serious matter. You should never agree to a reaffirmation without a very good reason.
Do I Have to Reaffirm Any Debts?
No. Reaffirmation is always optional. It is not required by bankruptcy law or any other law. If a creditor tries to pressure you to reaffirm, remember you can always say no.
Can I Change My Mind After I Reaffirm a Debt?
Yes. You can cancel any reaffirmation agreement for sixty days after it is filed with the court. You can also cancel at any time before your discharge order. To cancel a reaffirmation agreement, you must notify the creditor in writing. You do not have to give a reason. Once you have canceled, the creditor must return any payments you made on the agreement.
Also, remember that a reaffirmation agreement has to be in writing, has to be signed by your lawyer or approved by the judge, and has to be made before your bankruptcy is over. Any other reaffirmation agreement is not valid.
Do I Have to Reaffirm on the Same Terms?
No. A reaffirmation is a new contract between you and the lender. You should try to get the creditor to agree to better terms such as a lower monthly payment or interest rate. You can also try to negotiate a reduction in the amount you owe. The lender may refuse but it is always worth a try. The lender must give you disclosures on the reaffirmation agreement about the original credit terms, and any new terms you and the lender agree on must also be listed.
Should I Reaffirm?
If you are thinking about reaffirming, the first question should always be whether you can afford the monthly payments. Reaffirming any debt means that you are agreeing to make the payments every month, and to face the consequences if you don’t. The reaffirmation agreement must include information about your income and expenses and your signed statement that you can afford the payments.
If you have any doubts whether you can afford the payments, do not reaffirm. Caution is always a good idea when you are giving up your right to have a debt canceled.
Before reaffirming, always consider your other options. For example, instead of reaffirming a car loan you can’t afford, can you get by with a less costly used car for a while?
Do I Have Other Options for Secured Debts?
You may be able to keep the collateral on a secured debt by paying the creditor in a lump sum the amount the item is worth rather than what you owe on the loan. This is your right under the bankruptcy law to “redeem” the collateral.
Redeeming collateral can save you hundreds of dollars. Because furniture, appliances, and other household goods go down in value quickly once they are used, you may redeem them for less than their original cost or what you owe on the account.
You may have another option if the creditor did not loan you the money to buy the collateral, like when a creditor takes a lien on household goods you already have. You may be able to ask the court to “avoid” this kind of lien. This will make the debt unsecured.
Do I Have to Reaffirm Car Loans, Home Mortgages?
If you are behind on a car loan or a home mortgage and you can afford to catch up, you can reaffirm and possibly keep your car or home. If the lender agrees to give you the time you need to get caught up on a default, this may be a good reason to reaffirm. But if you were having trouble staying current with your payments before bankruptcy and your situation has not improved, reaffirmation may be a mistake. The collateral is likely to be repossessed or foreclosed anyway after bankruptcy, because your obligation to make payments continues. If you have reaffirmed, you could then be required to pay the difference between what the collateral is sold for and what you owe.
If you are up to date on your loan, you may not need to reaffirm to keep your car or home. Some lenders will let you keep your property without signing a reaffirmation as long as you continue to make your payments. Sometimes lenders will do so if they think the bankruptcy court will not approve the reaffirmation agreement.
And What About Credit Cards and Department Store Cards?
It is almost never a good idea to reaffirm a credit card. Reaffirming means you will pay bills that your bankruptcy would normally wipe out. That can be a very high price to pay for the convenience of a credit card. Try paying cash. Then in a few years, you can probably get a new credit card, that won’t come with a large unpaid balance!
If you do reaffirm, try to get something in return, like a lower balance, no interest on the balance, or a reasonable interest rate on any new credit. Don’t be stuck paying 18/-/21% or higher!
Some department store credit cards may be secured. The things you buy with the credit card may be collateral. The store might tell you that they will repossess what you bought, such as a TV, washer, or sofa, if you do not reaffirm the debt. Most of the time, stores will not repossess used merchandise. So, after a bankruptcy, it is much less likely that a department store would repossess “collateral” than a car lender.
However, repossession is possible. You have to decide how important the item is to you or your family. If you can replace it cheaply or live without it, then you should not reaffirm. You can still shop at the store by paying cash, and the store may offer you a new credit card even if you don’t reaffirm. (Just make sure that your old balance is not added into the new account.)
For example, some offers to reaffirm may seem attractive at first. Let’s say a department store lets you keep your credit card if you reaffirm $1000 out of the $2000 you owed before bankruptcy. They say it will cost you only $25 per month and they will also give you a $500 line of credit for new purchases. What they might not tell you is that they will give you a new credit card in a few months even if you do not reaffirm. More importantly, though, you should understand that you are agreeing to repay $1000 plus interest that the law says you can have legally canceled. That is a big price to pay for $500 in new credit.