Bankruptcy Strategies for a Business Owner
My question involves bankruptcy in the state of: Florida.
I'm hoping someone here could help with this complicated situation my father is in. He lives in Florida and owns his own business. He has been having financial issues for years. The point has come where he needs to file for personal and commercial bankruptcy. He has obtained a free consultation already, but has not hired an attorney yet. He has a lot of questions and doesn't seem to know what to do. To top it all, he has suffered from major depression for most of his life so that clouds his decision making.
Here are some questions I'm hoping someone could help with The attorney from the free consultation said he can't file for personal and commercial bankruptcy at the same time and that it takes at least 3 months for one bankruptcy to be completed. Is this true?
Based on this, he is thinking about filing for personal bankruptcy first. Does this seem right? He has struggled for a long time and has obtained financial assistance from friends and family. He is technically to date on all his personal and commercial bills because friends and family have loaned him money (which he would really like to pay back once he is back on his feet).* His business is not doing well at all and he just can't pay bills anymore without asking for more money (which he doesn't want to do).
The attorney told him he needs to be behind on his bills before filing for bankruptcy. Is this true? If so, for how many months? He has no assets except for some equity on his home. Can creditors put a lien on his home because he has a little bit of equity? I read there is something called a Declaration of Homestead (separate form a homestead exemption) which provides lien protection. Is this true?
If he does personal bankruptcy first and then commercial, can the commercial creditors go after him even though he has no assets except the small amount of home equity?
I apologize for all the questions. I am just trying to help him get some answers. Thank you in advance for any suggestions you may have.
TLR: Do you need to be behind on your bills to file for bankruptcy? Is it better to file personal or commercial bankruptcy first? In Florida, can unsecured debt potentially cause a lien to be placed on your homestead? Thank you.
Re: Bankruptcy Strategies for a Business Owner
Without knowing a lot more about the business situation, it is impossible to analyze the situation. Most businesses that are in financial trouble close without going through the bankruptcy process. Those that do not will typically pursue a Chapter 11 reorganization, which is an expensive process. A personal bankruptcy following the closure of a small business is typically enough to protect the owner from claims by the former creditors of the business, assuming no allegations of misappropriation of assets.
Depending upon whether a debtor is planning to pursue Chapter 7 or Chapter 11 bankruptcy, the debtor's income and debt load can be a significant factor. It might be appropriate to file a Chapter 7 bankruptcy to avoid responsibility for contingent liabilities even if you have little to no present debt -- but you have to qualify under the means test. Trying to discharge contingent liability (such as a personal guarantee of a business loan) would be more complex under a Chapter 13 plan, and if your debts are under control it would be difficult to justify the need to restructure your debt for a Chapter 13 bankruptcy even if it was a 100% repayment plan.
Basically, if he doesn't trust his lawyer's advice he should be consulting another bankruptcy lawyer. We cannot realistically analyze his situation without a lot more information about his assets, liabilities and goals.