Protect Assets before Filing for Bankruptcy

Before a Geraci law attorney files a case, we analyze the client’s assets, and whether those assets are “exempt” from creditors or not. Read more to see protection that could help you! Need to review your options? Call 800 CALL PFG for a free consult or set online @ https://www.infotapes.com/Bankruptcy/OfficeLocator

Below is an article written by Attorney Peter Francis Geraci titled, “Protect Assets before Filing for Bankruptcy.” This focuses on rent prepayment as allowable in some states to protect otherwise exposed case from creditors. Read more articles by Attorney Geraci at https://www.infotapes.com/Articles

Before a Geraci law attorney files a bankruptcy for a client, we always analyze the client’s assets, and whether those assets are “exempt” from creditors or not. Each state has laws called exemption laws. The U.S. Bankruptcy Code also has exemption provisions. These exemptions state what property is “exempt” from attachment and liquidation by your creditors.

Exemption planning is perfectly permissible! One way to claim an exemption is to convert “non-exempt” property into “exempt” property. This should NOT be done to hide money from creditors, or without the advice of an attorney, but some “exemption planning” has been approved by both state courts and bankruptcy courts. “Homestead” exemptions are usually thought of as protecting real estate, but in some states, when filing an Illinois bankruptcy or an Indiana bankruptcy, personal property such as a trailer used for a residence, or prepaid rent, are permissible exemptions under those states “Homestead Exemptions”.

In some states, such as Florida, exemption planning is forbidden when it comes to personal property. :

Florida Statute 222.30  Fraudulent asset conversions.— (1) As used in this section, “conversion” means every mode, direct or indirect, absolute or conditional, of changing or disposing of an asset, such that the products or proceeds of the asset become immune or exempt by law from claims of creditors of the debtor and the products or proceeds of the asset remain property of the debtor. The definitions of chapter 726 apply to this section unless the application of a definition would be unreasonable.

(2) Any conversion by a debtor of an asset that results in the proceeds of the asset becoming exempt by law from the claims of a creditor of the debtor is a fraudulent asset conversion as to the creditor, whether the creditor’s claim to the asset arose before or after the conversion of the asset, if the debtor made the conversion with the intent to hinder, delay, or defraud the creditor.

There has to be the requisite intent. “[A] debtor can convert non-exempt assets to exempt unless he is motivated to make such a conversion by an actual intent to hinder, delay, or defraud his creditors.” In re Jennings, 522 F.3d 1333 (11th Cir. 2008)

But if you are lucky enough to own real estate, or a trailer, that is your primary residence in Florida, (your “homestead”) you CAN transfer cash or sell that $40,000 classic car that would be taken in a bankruptcy, and pay down your mortgage on your homestead property. FLA does not have a blanket prohibition against exemption planning.

1.      222.30 does not apply to the homestead in FL. See Havoco of Am. Ltd. v. Hill, 790 So.2d 1018 (Fla. 2001) and In re Chauncey, 454 F.3d 1292 (11th Cir. 2006)

 2.      There has to be the requisite intent. “[A] debtor can convert non-exempt assets to exempt unless he is motivated to make such a conversion by an actual intent to hinder, delay, or defraud his creditors.” In re Jennings, 522 F.3d 1333 (11th Cir. 2008)

So, in Illinois and Indiana Geraci Law lawyers think about renters: Is there a homestead exemption for prepaid rent or security deposit?

Illinois     Yes – 735 ILCS 5/12 901

Indiana      Yes – IC 34-55-10-2(c)(1)

Wisconsin   No for homestead, but  Yes under wildcard

FL     No for homestead Florida Constitution Article 10 § 4 and Florida Statutes Annotated § 222.01 through § 222.05 but yes under wildcard

US    Yes, arguably because same language as Illinois and Indiana

Illinois: 735 ILCS 5/12 901: Every individual is entitled to an estate of homestead to the extent in value of $15,000 of his or her interest in a farm or lot of land and buildings thereon, a condominium, or personal property, owned or rightly possessed by lease or otherwise and occupied by him or her as a residence, or in a cooperative that owns property that the individual uses as a residence.

Indiana: IC 34-55-10-2(c)(1): Real estate or personal property constituting the personal or family residence of the debtor or a dependent of the debtor, or estates or rights in that real estate or personal property, of not more than fifteen thousand dollars ($15,000). The exemption under this subdivision is individually available to joint debtors concerning property held by them as tenants by the entireties.

Florida: 222.05  Setting apart leasehold. Mobile home on leased land is exempt.

Federal: 11 U.S.C. (d) The following property may be exempted under subsection (b)(2) of this section:

(1) The debtor’s aggregate interest, not to exceed $15,000 [$20,200 effective 4-1-07. Adjusted every 3 years by section 104.] in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor.

 Wisconsin 990.01 (14)  Homestead exemption. “Exempt homestead” means the dwelling, including a building, condominium, mobile home, manufactured home, house trailer or cooperative or an unincorporated cooperative association, and so much of the land surrounding it as is reasonably necessary for its use as a home, but not less than 0.25 acre, if available, and not exceeding 40 acres, within the limitation as to value under s. 815.20, except as to liens attaching or rights of devisees or heirs of persons dying before the effective date of any increase of that limitation as to value.

ANALYSIS:

Illinois: By plain language, a debtor’s interest in a lease can be claimed as homestead as long as they are living there.

Indiana: Under IN law, a leasehold can be considered an interest in real property or an interest in personal property, but the exemption applies regardless. See In re Coffey, 339 B.R. 689 (Bankr. N.D. Ind 2006)

Federal: debtor’s interest in real or personal property used as a residence under homestead: also can be exempt under federal wildcard

Florida: Homestead is principal residence, must be real estate of something live in on land, like a trail that is owned, whether on land owned or leased. But exemption planning adding to homestead is allowed and can be exempted.

Wisconsin: Prepaid rent can’t be exempted under Homestead definition limited to “the dwelling” no language like Illinois and Wisconsin.

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 30,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Who Your Lawyer Is, DOES Make a Difference

Geraci Law founder Peter Francis Geraci likes to say “Why pay the same and not get the name?” 

Who Your Lawyer Is, DOES Make a Difference

Geraci Law founder Peter Francis Geraci likes to say “Why pay the same and not get the name?”  Even worse, why THINK you’re paying an attorney to protect you, but end up losing your home or other asset?

Remember, creditors look at your bankruptcy petition, and so does the United States Trustee and their minions.  An attorney representing creditors scrutinizes your Chapter 7 or 13 petition, looking for assets they can take, or money they can get you to pay creditors.

Geraci Law Attorney Nathan E. Curtis recently defeated a Chapter 7 trustee in one case, and a Chapter 13 trustee in another. In Will County, Illinois, the Chapter 7 trustee wanted to take $12,000.00 the Geraci clients had claimed exempt as funds from the sale of their home, because Illinois law says the “homestead” exemption is only good for a year.  Attorney Curtis pointed out to the Court that, since the Chapter 7 was filed within a year of receiving the sale proceeds, the Trustee could not claim it by holding the Chapter 7 case open and waiting a year to object.  This saved the Debtors $12,000.00.

In the Chapter 13 case, Geraci Law attorney Nathan Curtis defeated the claim of the Chapter 13 trustee that life insurance proceeds of $50,000 were “disposable income” that had to be paid to creditors. Attorney Curtis pointed out that only “current monthly income”, not a one-time payment, much less a life insurance payment that is exempt from creditors, may be required to be used to pay creditors.  The Bankruptcy Judge agreed, and Geraci Law saved the widow from having to use life insurance to pay creditors.

Who you choose for an attorney DOES make a difference!

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 30,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Worried About Assets? PFG can help!

Do you own a house, car, or another asset you want to keep? Are you worried that Chapter 7 bankruptcy means you won’t get to keep your property? Geraci Law & PFG can help!

Worried About Assets? PFG can help!

Do you own a house, car, or another asset you want to keep? Are you worried that Chapter 7 bankruptcy means you won’t get to keep your property? Geraci Law & PFG can help!

Geraci Law has over 40 years of bankruptcy law experience. We’ve seen it all. Geraci Law can help you eliminate debt and keep your property. We’ll figure out the best plan of action to fit YOUR needs.

Hiding things NEVER works. Tell us and we’ll figure out the best option to receive a discharge. Experience means a lot. Knowing you have the world-class representation of Geraci Law on your side make the process easier.

From Attorney Peter Francis Geraci’s, The Complete Book on Bankruptcy

If your house is worth a lot of money, or even if it is only worth more than your mortgage plus homestead exemption, you may not be able to file a Chapter 7 and still keep the house. You may have to do a Chapter 13 repayment plan to protect your equity in the house. It is necessary to bring in a recent appraisal if you want competent advice from your attorney. You do not need an expensive appraisal. You may already have one if you have recently refinanced the house, or if you recently purchased it. A letter appraisal from a local real estate agent will do.

 

Example: Mr. and Mrs. Robertson have fallen behind in their house payments, because Mr. Robertson was ill for 6 months. They were served with a foreclosure suit, and want to save their house. They have no other bills. Their neighbors, the Smiths, have a lot of bills, but they are current only on their house payment.

The Peter Francis Geraci Chapter 7 or 13 Solution: The Robertson’s can file under Chapter 13 of the Bankruptcy Act to pay the 6 months of arrears, and foreclosure costs, over as long as 36 months. They have to start paying their regular mortgage payments again, but the mortgage company has to stop the foreclosure, and accept regular payments again. The Smiths can file under Chapter 7, and discharge all of their debt, and they can keep their house since it is worth $80,000, and their equity is less than $15,000 allowed as exempt from creditors under Illinois law. Other states have other laws relating to homestead.

Read more of The Complete Book on Bankruptcy @ https://www.bankruptcybookbypeterfrancisgeraci.com/