Dealing with bankruptcy in Florida can be complex if you’re not an attorney, and at times, it can feel hard to get straight answers to common questions. Maybe you’re just wondering if it’s possible for just one spouse to file, or if bankruptcy could put a pause on a foreclosure or even stop an eviction. And what about filing multiple times—how does that work?
Today we’re going to address some commonly-asked questions to help you get a clearer picture of your options. Let’s break it down and see exactly what filing bankruptcy in Florida could mean for you:
Q: Can One Spouse File for Bankruptcy in Florida?
Yes, in Florida, one spouse can file for bankruptcy without the other. This can be a strategic move depending on how your debts are set up:
- Let’s say most of the credit card or medical debt is in one spouse’s name—that spouse could file for bankruptcy to address those debts while the other spouse stays out of the filing. This way, the non-filing spouse could potentially keep their credit score intact, which can be useful for future financial planning, like if you’re thinking about buying a house or car.
- Here’s another example: imagine one spouse had a business in Orlando that didn’t work out due to a downturn in tourism, leading to a lot of business-related debt under that spouse’s name. Filing individually could make sense to keep the financial impact contained to the spouse who owned the business.
But, it’s important to keep in mind any debts you both signed up for together—things like joint credit cards or co-signed loans.
If only one spouse files for bankruptcy, the creditors can still pursue the non-filing spouse for payment on those joint debts.
If you’re leaning towards this option, it might be wise to have a chat with a bankruptcy attorney to make sure you understand all the angles and how it’ll affect both of you moving forward.
Q: Does Bankruptcy Stop Foreclosure in Florida?
In Florida, filing for bankruptcy can indeed stop a foreclosure—at least temporarily. When you file for bankruptcy, what’s called an automatic stay kicks in. This stay acts like a big red stop sign to all creditors, including your mortgage lender, telling them they can’t continue with collection activities, like foreclosure, without permission from the bankruptcy court.
Here’s how it can work: Imagine you’re behind on your mortgage payments because of an unexpected medical emergency and the hospital bills piled up. If you file for bankruptcy, this automatic stay gives you a breather to get your finances sorted out. If you file under Chapter 13, you can actually reorganize your debts and create a plan to catch up on your missed mortgage payments over time.
However, there are situations where it won’t work as you might hope. If the foreclosure process is already at an advanced stage—say, your lender has already received a final judgment of foreclosure from the court—the automatic stay won’t affect this judgment. The lender might only need to ask the court to lift the stay, which they often get permission to do, and proceed with the foreclosure.
Also, if this isn’t your first time filing for bankruptcy, the court might view your filing as a stalling tactic and be less likely to grant you the automatic stay. Or, if your financial situation doesn’t show a clear path for catching up on payments, even with bankruptcy protection, then the relief might only be temporary.
So, while bankruptcy can provide a valuable window to address your financial issues and potentially keep your home, it’s important to consider the specifics of your situation and seek professional advice to navigate this process effectively.
Q: Does Bankruptcy Stop Eviction in Florida?
When you file for bankruptcy, it triggers something called an automatic stay. This is a legal hold that stops most creditors in their tracks, including your landlord from moving forward with an eviction—temporarily, at least.
But here’s the thing: If your landlord already got a judgment of possession against you before you filed, the eviction might still go on. The stay doesn’t reverse that judgment.
Now, if you’re considering Chapter 13 bankruptcy and you manage to file before your landlord gets that judgment, you might have a shot at keeping your place. In Chapter 13, you can roll your past due rent into your repayment plan. You’ll need to stay on top of your current rent and follow through with the plan you set up with the court.
But keep this in mind: if there are allegations of illegal activities like drug use on the property or if the property was endangered, your landlord can request the court to lift the stay specifically for the eviction.
So while bankruptcy can give you a breather and a chance to sort things out, it’s not a foolproof shield against eviction, especially if there are ongoing issues like missed payments.
Q: Can Bankruptcy Stop Writ of Possession?
Filing for bankruptcy in Florida can potentially stop a writ of possession, but it really hinges on the timing and the specifics of your situation. A writ of possession is issued by a court, typically as part of an eviction process or to enforce a foreclosure, ordering the transfer of property back to the landlord or foreclosing bank.
Here’s how it might work: If you file before the writ of possession is actually issued, the automatic stay that comes with the bankruptcy filing can prevent the writ from being executed. This means that as long as the stay is in effect, you can’t be legally removed from your property.
However, if the writ of possession has already been issued before you file, the automatic stay won’t usually affect it. This is especially true in foreclosure cases where the property sale has been completed. Once that sale is done and the writ issued, the new owner has the right to proceed with eviction under the writ of possession, and bankruptcy can’t undo that.
Here’s an example situation where it could work:
- Imagine you’re behind on rent and your landlord is seeking eviction. If you file for bankruptcy before the court issues a writ of possession, the automatic stay could temporarily halt the eviction, giving you some time to catch up on rent through a repayment plan if you file under Chapter 13.
And a situation where it won’t work:
- If you’ve already been foreclosed on, and the new property owner has a writ of possession to remove you from the home, filing for bankruptcy after the writ’s issuance won’t typically help you stay in the home.
It’s important to understand the timing of both your bankruptcy filing and the stages of any eviction or foreclosure proceedings to effectively navigate these situations. Again, consulting with a bankruptcy attorney would be a wise step to ensure you understand all your options and the best timing for any actions you might consider.
Q: Can You File Bankruptcy Twice in the State of Florida?
Yes, you certainly can file for bankruptcy more than once in Florida, but there are some specific rules and timelines you need to follow, which depend on the type of bankruptcy you’re considering:
- Chapter 7: If you’ve previously filed for Chapter 7 bankruptcy and received a discharge of your debts, you’ll need to wait eight years from the date you filed the first case before you can file another Chapter 7 and get a full discharge again.
- Chapter 13: If you’ve filed for Chapter 13 bankruptcy previously and received a discharge, you need to wait only two years before filing another Chapter 13. This shorter waiting period reflects the ongoing commitment to a repayment plan that typically lasts 3 to 5 years in Chapter 13.
- Switching Between Chapter 7 and 13: If you want to switch types—say you filed Chapter 7 first and now want to file Chapter 13—you need to wait four years from your Chapter 7 filing date to file Chapter 13. Conversely, if you filed for Chapter 13 and want to switch to Chapter 7, the waiting period is six years unless you paid off all or a substantial part of your debts in the Chapter 13 case.
Here are a couple of example situations:
- Let’s say you filed for Chapter 7 bankruptcy in 2015 and got your debts discharged. Now, it’s 2024, and you’ve hit another rough patch financially. Since more than eight years have passed, you can file for Chapter 7 again if necessary.
- Imagine you filed for Chapter 7 bankruptcy in 2021 and now, in 2024, you find yourself needing relief again. In this case, you wouldn’t be eligible to file for another Chapter 7 yet, as not enough time has passed. However, you could consider filing for Chapter 13 if you need immediate relief from creditors.
Remember that bankruptcy is public record in Florida, and filing multiple times can be seen as a red flag. It’s a good idea to plan carefully and consider consulting with a bankruptcy attorney to make sure you’re making the best move for your long-term financial health.
For legal guidance with your specific bankruptcy concerns in Florida, contact attorney Brian Miller at The Independence Law Firm of Winter Park, FL. Call 407-755-9705 or click here to contact us by email.
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