Legal Self-Help

The Law Offices of George Castrataro, P.A.

Welcome to our Legal Self Help section.

No matter which method you choose to get out of debt, or address a litigation issue, it will take patience, hard work, and you will need to learn more about your options. In order to help our clients make the right choices for themselves, the Castrataro law firm has provided these helpful articles about the bankruptcy process and related issues.

We post new articles from time to time to help guide you through the process of starting a business, filing for bankruptcy, foreclosure defense, and other legal matters. If you have any legal questions about your specific circumstances please don't hesitate to contact us for a free no-obligation consultation.

George Castrataro Receives Highest Rating from Martindale-Hubbell® in Bankruptcy, Litigation and General Practice

George Castrataro has been rated AV – Preeminent by Martindale-Hubbell®. AV – Preeminent is the highest and most significant rating accomplishment. The rating is a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.

The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. Those lawyers who meet the "Very High" criteria of General Ethical Standards can proceed to the next step in the ratings process – Legal Ability.

Overall Peer Rating (In Bankruptcy, Litigation and General Practice): 5.0 out of 5.0

Legal Knowledge: 4.9 Analytical Capabilities: 5.0 Judgment: 5.0 Communication Ability: 5.0 Legal Experience: 4.8

Bankruptcy – A Fresh Start

People often misunderstand the effect that filing for bankruptcy can have on their lives. They believe they will never be able to get a credit card again, or never buy a house. This is not the case. Bankruptcy is meant to brighten the horizon, not darken it. Credit can be reestablished after bankruptcy.

The purpose of bankruptcy – an ancient concept — is to help people find debt relief and get a fresh start. If you are feeling stressed and overwhelmed by your financial situation, you should certainly consider the option that bankruptcy provides to help you avoid adverse consequences.

Divorce, job loss, illness, disability and business failure are common circumstances that lead people to seek debt relief. Unexpected medical costs or out-of-control credit card debt can quickly overwhelm an individual or family. Bankruptcy is a safe and equitable solution. You can start again, and we can help with reorganizing or restructuring your debt.

Bankruptcy laws exist to help people like you get the relief they need. We can explain how these laws apply to your specific circumstances and help you effectively eliminate your debt. If you are considering filing for bankruptcy, trust your case to a lawyer who will handle your case properly, the first time.

The United States Bankruptcy Code is broken down into Chapters. Our knowledgeable attorneys file hundreds of cases per year and guide clients through the process of attaining debt forgiveness through the bankruptcy process that is right for them depending on their individual circumstances.

You owe it to yourself to come in to take the first step towards a clean slate: Call us at 954.573.1444 or email us to arrange a free consultation in our offices to discuss the legal options for your specific situation.

Chapter 7 Bankruptcy — Who Can't File?

Chapter 7 bankruptcy eligibility depends on the means test and other rules.

In order to be eligible for Chapter 7 bankruptcy, you must meet several criteria. Your income cannot be over a certain amount, and if it is, you must pass the "means test." In addition, the court will dismiss your case if you have filed a previous bankruptcy within a certain period of time, or if the court believes you are cheating your creditors. This article explains the situations in which you won't be eligible to file for Chapter 7 bankruptcy.

You Have Enough Income to Repay Your Debts

Under the old bankruptcy rules, the bankruptcy judge had the power to dismiss a Chapter 7 bankruptcy case if he or she thought the debtor had sufficient disposable income to fund a Chapter 13 repayment plan. There were no hard and fast rules dictating when a judge should dismiss a case on these grounds — it depended on the facts of the case and the attitude of the judge.

Now that the new bankruptcy law has gone into effect, however, there are clear criteria that dictate who will be allowed to stay in Chapter 7 bankruptcy — and who will be forced to use Chapter 13 bankruptcy if they want to file. Disabled veterans whose debts were incurred during active duty and people whose debts come primarily from the operation of a business get a fast pass to Chapter 7 bankruptcy. All others must meet the requirements set out below.

How High is Your Income?

Under the new rules, the first step in figuring out whether you can file for Chapter 7 bankruptcy is to measure your "current monthly income" against the median income for a family of your size in your state. Your "current monthly income" is your average income over the last six months before you file. If your income is less than or equal to the median, you can file for Chapter 7 bankruptcy.

If your income is more than the median, however, you must pass "the means test" — another requirement of the new law — in order to file for Chapter 7 bankruptcy.

Do You Have Enough Disposable Income to Repay Some Debts?

The purpose of the means test is to figure out whether you have enough disposable income, after subtracting certain allowed expenses and required debt payments, to repay at least a portion of your unsecured debts over a five-year repayment period.

To find out how a free online calculator can help you figure out whether you pass the means test, see The Bankruptcy Means Test: Is Your Income Low Enough for Chapter 7 Bankruptcy?

For much more information on these new requirements, including detailed worksheets that will help you figure out whether you can use Chapter 7 bankruptcy, see How to File for Chapter 7 Bankruptcy, by Stephen Elias, Albin Renauer, and Robin Leonard (Nolo).

You Previously Received a Bankruptcy Discharge

You cannot file for Chapter 7 bankruptcy if you obtained a discharge of your debts in a Chapter 7 bankruptcy case within the last eight years, or a Chapter 13 case within the last six years.

A Previous Bankruptcy Was Dismissed Within the Previous 180 Days

You cannot file for Chapter 7 bankruptcy if a previous Chapter 7 or Chapter 13 case was dismissed within the past 180 days because:

• you violated a court order

• the court ruled that your filing was fraudulent or constituted an abuse of the bankruptcy system, or

• you requested the dismissal after a creditor asked for relief from the automatic stay.

You Defrauded Your Creditors

A bankruptcy court may dismiss your case if it thinks you have tried to cheat your creditors or concealed assets so you can keep them for yourself.

Certain activities are red flags to the courts and trustees. If you have engaged in any of them during the past year, your bankruptcy case may be dismissed. These no-nos include:

• unloading assets to your friends or relatives to hide them from creditors or from the bankruptcy court

• running up debts for luxury items when you were clearly broke and had no way to pay them off

• concealing property or money from your spouse during a divorce proceeding, or

• lying about your income or debts on a credit application.

In addition, you must sign your bankruptcy papers under "penalty of perjury" swearing that everything in them is true. If you deliberately fail to disclose property, omit material information about your financial affairs, or use a false Social Security number (to hide your identity as a prior filer), and the court discovers your action, your case will be dismissed and you may be prosecuted for fraud.

Foreclosure Doesn't Always Have To Happen

The good news is that lenders don't actually want your home. With home prices falling and industry standards changing, banks and lenders are better off keeping you in your home than kicking you out. They have options to help borrowers through difficult financial times.

What NOT To Do:

First and foremost, don't lose your house to foreclosure recovery scams! If any firm claims they can stop your foreclosure immediately, and if you sign a document appointing them to act on your behalf, you may well be signing over the title to your property and becoming a renter in your own home! Never sign a legal document without reading and understanding all the terms and getting professional advice from an attorney, a trusted real estate professional or a HUD-approved housing counselor.

Do not put your trust and money into a foreclosure prevention company. You don't need to pay exorbitant fees for foreclosure prevention help. Companies will promise to negotiate with your lender on your behalf. These may or may not be legitimate businesses, and they will charge excessive fees — two or three months of mortgage payments — for services your lender or a HUD-approved housing counselor will provide free if you contact them.

Don't ignore the letters from your lender. The first notices you receive will offer good information about foreclosure prevention options that can help you weather financial problems. Later mail may include important notices of pending legal action. Your failure to open the mail will not be an excuse in foreclosure court.

Make sure that any plan you agree to with your lender doesn't increase your monthly payment but reduces it to one you can handle for the long term.

What To Do:

If you have received a notice from your lender asking you to contact them, or if you are unable to make your mortgage payment ACT QUICKLY! Contact your lender immediately and ask about your mortgage rights.

Find your loan documents and read them so you know what your lender may do if you can't make your payments. You will need to get the facts on foreclosure prevention (also called loss mitigation) options and learn about the foreclosure laws and time frames specific to Florida. Call or visit the Florida Government Housing Office online.

Can You Rearrange Your Spending?

Your health and your house should be your first priorities. Examine your income and budget. Can you cut spending in order to make your mortgage payment? Realistically, you may have to discontinue optional entertainment expenses or renegotiate payments on credit cards until you have paid your mortgage. Have you considered all your expenses?

You may want to consider selling a second car, jewelry, or a whole life insurance policy to help reinstate your loan. Can anyone in your household get an extra job to bring in additional income? You may want to consider borrowing from a family member. These efforts can demonstrate to your lender that you are willing to make sacrifices to keep your home.

What Your Lender May Offer

If your problems are temporary due to recent medical bills or a lay off, your lender is more likely to work with you on a short-term solution. A cooperative lender may give you a deadline to make up missed payments in one lump sum, or might offer to freeze your monthly statements until you can resume payments as usual.

The most likely short-term scenario is that your lender will offer a repayment plan — one that includes your regular monthly payments plus a fraction of what you've missed, until you're all caught up.

Depending on your circumstances, your lender may even be willing to modify the terms of your loan entirely. The bank can extend the amortization period (the time you have to repay your loan), lower your interest rate or change it from an adjustable rate to fixed.

If You Need to Sell Your Home

Your lender will set a deadline for you to find a buyer and pay off your mortgage balance. Keep in mind that if you sell for less than you owe, you could owe income taxes on the difference.

If you are not eligible for free legal assistance and if you don't feel your lender is offering you the best arrangement, seek advice from a foreclosure attorney. Our firm has dozens of foreclosure clients, and we offer a free 15-minute consultation and reasonable rates. Just call 954.573.1444 to arrange an appointment or send us a message from our contact page.

Choosing the Best Ownership Structure for Your Business

The right structure — corporation, LLC, partnership, or sole proprietorship — depends on who will own your business and what its activities will be. When you start a business, you must decide whether it will be a sole proprietorship, partnership, corporation, or limited liability company (LLC). (The classification that is the right form for your business will depend on the type of business you run, how many owners it has, and its financial situation. No one choice suits every business: Business owners have to pick the structure that best meets their needs. This article introduces several of the most important factors to consider, including: the potential risks and liabilities of your business the formalities and expenses involved in establishing and maintaining the various business structures your income tax situation, and your investment needs.

Risks and Liabilities

In large part, the best ownership structure for your business depends on the type of services or products it will provide. If your business will engage in risky activities — for example, trading stocks or repairing roofs — you'll almost surely want to form a business entity that provides personal liability protection ("limited liability"), which shields your personal assets from business debts and claims. A corporation or a limited liability company (LLC) is probably the best choice for you.

Formalities and Expenses

Sole proprietorships and partnerships are easy to set up — you don't have to file any special forms or pay any fees to start your business and you don't have to follow any special operating rules. On the other hand, LLCs and corporations are almost always more expensive to create and more difficult to maintain. To form an LLC or corporation, you must file a document with the state and pay a fee, which ranges from about $40 to $800, depending on the state where you first build your business. In addition, owners of corporations and LLCs must elect officers (usually, a president, vice president, and secretary) to run the company. They also have to keep records of important business decisions and follow other formalities.

If you're starting your business on a shoestring, it might make the sense to form the simplest type of business — a sole proprietorship (for one-owner businesses) or a partnership (for businesses with more than one owner). Unless yours will be a particularly risky business, the limited personal liability provided by an LLC or a corporation may not be worth the cost and paperwork required to create and run one.

Income Taxes

Owners of sole proprietorships, partnerships, and LLCs all pay taxes on business profits in the same way. These three business types are "pass-through" tax entities, which means that all of the profits and losses pass through the business to the owners, who report their share of the profits (or deduct their share of the losses) on their personal income tax returns. Therefore, sole proprietors, partners, and LLC owners can count on about the same amount of tax complexity, paperwork, and costs.

Living Will, Power of Attorney, or Advance Directive?

These documents direct your health care if you're unable to communicate your wishes.

The names for documents that set out your wishes for medical care depend on the state in which you live: advance directive, living will, declaration, power of attorney, patient advocate designation, and so on. All of these are terms for health care directives — that is, documents that let you write out instructions about the type of health care you want to receive, including who should oversee your treatment, if you are unable to speak for yourself. Here's a brief overview to help you understand these documents.

Living Will

This document bears no relation to the conventional will or living trust used to leave property at death. It's a document that lets you state what type of medical treatment you do or do not wish to receive if you are too ill or injured to direct your own care. (Among other things, you can use it to be sure doctors do — or do not — "pull the plug.") The document may have a different name in your state (it's often called a "declaration"), but you'll recognize it as the place where you write down your specific wishes about types of medical care.

Durable Power of Attorney for Health Care

This document, also known as a medical power of attorney, allows you to name a trusted person to make medical decisions for you if you are unable to communicate on your own. The person you name to make these decisions is usually called your agent or attorney-in-fact.

You can give your agent the authority to oversee the wishes you've set out in your health care declaration, as well as the power to make other necessary decisions about health care matters. Some states combine the declaration and durable power of attorney into a single form, most often called an "advance health care directive."

Other Names for Health Care Agents

In addition to "agent" or "attorney-in-fact," health care representatives are sometimes called "proxies," "patient advocates," "surrogates," or something similar. But if you hear the term "guardian" or "conservator," that probably means something different.

Guardians and conservators are court-appointed decision makers, unlike those that you appoint yourself in a health care directive. One of the best reasons to make health care directives is to avoid complicated or stressful conservatorship or guardianship proceedings.

Do Not Resuscitate (DNR) Order

If a medical emergency occurs, a DNR order alerts emergency personnel that you do not wish to receive cardiopulmonary resuscitation (CPR). DNR orders are sometimes made to supplement other health care directives, usually by those who are already critically ill and feel strongly that they do not want to receive life-prolonging treatment when close to death. If you are in the hospital, you can ask your doctor to add a DNR order to your medical record. If you are not hospitalized, you can make what's called a pre-hospital DNR order to keep nearby in case paramedics are called to your home or care facility.

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