Rountree Leitman & Klein, LLC's Legal Blog

How Can I Get Rid of a FIFA (Writ of Fieri Facias) in Bankruptcy?

8/1/2024

Will B. Geer
Partner
E-mail Will

No, I'm not talking about the international soccer club or that guy on Food Network with the annoyingly frosted tips.

A Writ of Fire Facias is simply the document issued by the county clerk's office to record a lien on all your property within that county. This includes both real (like your house) and personal (like your car) property. It is essentially a fancy legal term for a judgment lien. If you have a judgment lien out there, I can find it and strip it off all your property with either a Chapter 7 or Chapter 13 bankruptcy.

You can only have a FIFA recorded against you if you have been sued. First, the sheriff or some private process server will come to your door and hand you a large envelope with a stack of papers in them called the summons and complaint. The summons gives you instructions on when you need to file a formal legal answer to the complaint against you. The receipt of these papers is called "getting served." If you do not file a proper answer, the creditor suing you can ask the court to enter a Default Judgment against you. If this happens, shortly thereafter, a Writ of Fieri Facias can be filed for the requested amount that the creditor is trying to recover from you. This amount will continue to accrue interest at the statutory rate for as long as it remains unpaid, which will make it very difficult to ever pay off in the future.

Fortunately, in either a Chapter 7 or Chapter 13, I can avoid the judgment lien (FIFA) on any household goods that are exempt under applicable state law. Most people's property will be fully exempt, or protected, in a Chapter 13 or Chapter 7 bankruptcy. Also, if you own real property that already has a mortgage on it, that mortgage will likely be worth more than the value of the property. For instance, if your house is worth $150,000, and you owe the bank $140,000, you $10,000 of equity. If Midland Funding or some other debt buyer sues you, you choose not to defend it, and they pop you with a $20,000 writ of fieri facias, they can potentially do a sheriff's sale on your home and take the $10,000 in equity you have.

But, if you file bankruptcy, your Georgia bankruptcy exemptions will allow you to protect that entire $10,000 in equity, meaning that we can avoid that FIFA completely. This will turn a secured debt (a debt that is secured by some collateral, such as your house or car) in to an unsecured debt (debt that is not secured by anything but a promise to pay, like credit cards or medical bills).

If you want to figure out how much your home is worth, check out Zillow.com and your local tax assessor. Those are good starting places, and many Atlanta bankruptcy judges will accept valuations from these two sources.

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Five attorneys selected as 2024 georgia super lawyers

2/9/2024

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Rountree Leitman Klein & Geer, LLC proudly announces that partners William A. Rountree, Hal J. Leitman, David S. Klein, Will B. Geer, and Alexandra M. Dishun have been honored as 2024 Georgia Super Lawyers. This prestigious recognition underscores Rountree Leitman Klein & Geer, LLC's commitment to excellence and leadership in the legal profession.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Each year, only the top 5% of attorneys in each state are selected as Super Lawyers, while only the top 2.5% of attorneys are selected as Rising Stars, making this recognition a significant achievement.

"We are thrilled to have five of our partners recognized as Georgia Super Lawyers for 2024," said David S. Klein, Partner at Rountree Leitman Klein & Geer, LLC. "This honor reflects our firm's dedication to providing exceptional legal representation and our commitment to serving our clients with integrity and excellence."

Founded in 2018, Rountree Leitman Klein & Geer, LLC has established itself as a leading boutique law firm in the Atlanta area, known for its comprehensive legal services and unwavering dedication to client success. With a focus on corporate and individual bankruptcy, commercial litigation, real estate litigation, and debtor-creditor matters, the firm's attorneys combine their expertise, experience, and innovative approaches to deliver outstanding results for their clients.

Rountree Leitman Klein & Geer, LLC's team of attorneys includes some of the most respected legal professionals in Georgia, with a track record of success in these areas of law. The firm's commitment to professional excellence and client satisfaction has earned it a reputation for excellence and trust within the legal community and among clients.

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What Every Parent Should Know About Bankruptcy

1/15/2024

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Filing bankruptcy has significant ramifications, and one that often slips under a parent's radar is the effect bankruptcy will have on the 529 qualified tuition program they have been diligently contributing to for the last several years. As a parent myself, I want to do the best I can to ensure that my daughers receive the absolute best education possible, and with tuition costs outpacing inflation by an astronomical rate, there is no telling how much a four-year degree will cost our family. That's why we, and many other parents, have been contributing a portion of our income to a tax-advantaged college savings plan. Unlike your 401k retirement plan; however, a 529 savings plan is not offered the same protections under the bankruptcy code.

What is a 529 Plan? A "529" college savings plan is aptly named for the tax code section creating it. The benefit of a 529 plan is that deposits grow tax-free and any withdrawals spent on education related expenses such as tuition and books are tax-free as well. There are, of course, heavy penalties for withdrawing funds to pay off creditors or take an Alaskan cruise with the family.

529 Plans in Bankruptcy. 529 college savings plans are offered a certain level of protection under the bankruptcy code; however, unlike your retirement accounts, your kids' 529 accounts are not completely sheltered from your creditors. You see, under the bankruptcy code, all property of the debtor as of the filing of the petition date becomes property of the bankruptcy estate. This is a separate entity controlled by the trustee assigned to your case. The trustee's job is to seize and liquidate all your non-exempt assets for the benefit of your unsecured creditors. Under Georgia law, certain property, such as $10,000 of equity in your house, virtually all your retirement savings in a 401k or IRA, certain dollar amounts in household goods, etc., can be claimed as exempt from liquidation by the trustee. Non-exempt assets are the property left over after you have claimed all your exemptions under either federal or state law, depending on where you are filing bankruptcy. In addition to exempt assets, the trustee cannot liquidate assets that are not property of the estate, which includes certain funds contributed to a 529 savings plan. Here's the run-down of what every parent should know about 529 plans in bankruptcy:

All funds contributed to a 529 savings plan within 1 year prior to the bankruptcy filing are deemed property of the estate and are therefore capable of being liquidated by the trustee. So ANY money you have contributed in the year before you file will be seized by the trustee, unless you have an available exemption to shelter it.

Funds contributed to a 529 savings plan more than 1 year but less than 2 years prior to the bankruptcy filing date are exempt up to $5,000. What this means is that if you contributed $10,000 to your kids' college savings plan 400 days prior to your petition date, only $5,000 of that money would be safe from your creditors.

For funds contributed more than 2 years prior to the date of your bankruptcy filing, an amount that is equal to your state's maximum contribution limit per beneficiary will be excluded from the bankruptcy estate. To illustrate, in Georgia, if you contributed $100,000 to the Georgia Higher Education Savings Plan (GHESP) more than 2 years prior to your bankruptcy, that entire amount would be safe from creditors because Georgia's cumulative contribution limit of $285,000 per beneficiary. Any amount over $285,000 would not be safe. Other states have varying contribution limits, so if you are worried about your kid's college funds in your bankruptcy, please consult a local bankruptcy attorney to assist you in making the right decision.

As more food for thought, funds contributed to a 529 savings plan will only be protected if the beneficiary is your child, step-child, grandchild, or step-grandcihld. No saving grace if the funds were contributed for your brother, sister, niece, or nephew.

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Are my wages being garnished?

8/7/2023

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Having your wages garnished by a creditor will give you that sinking-gut feeling generally experienced right before narrowly avoiding a car accident. It is one of the most common reasons people come to see an Atlanta bankruptcy attorney to help them file a Chapter 7 or 13 petition , as once your bankruptcy petition is filed, the automatic stay will stop any continuing garnishment of your wages or bank accounts.

You've Been Sued

If your wages are being garnished, you have likely been sued. It is EXTREMELY difficult to get a pre-judgment (before you are sued) garnishment, so if your wages or bank accounts are being garnished and you have no idea why, a potential creditor sued you in state court by filing a complaint in the county in which you live. If you failed to file a legal answer (which typically requires to assistance of an experienced attorney), the creditor will receive what is called a "default judgment". If you actually defended the law suit by filing an answer and showing up to a possible scheduled trial calendar, then the creditor would have received a judgment on the merits. If that happened, you probably wouldn't be asking why my wages are being garnished, as garnishment is one of the most common forms of post-judgment collection used in Atlanta. A judgment is merely a final decision by the judge overseeing your case that one party is either right or wrong. In other words, the judgment is the written order of the judge deciding your case that you owe a certain amount of money to the creditor who sued you. Once the creditor obtains that judgment, it can file a petition to garnish your wages. Once the petition is granted, a judge (possible a different judge than the one who decided your case) will sign an order that will be sent to the garnishee (your employer or bank) to hold a certain percentage of your wages to be sent directly to the creditor. While there are numerous ways to attack a garnishment, bankruptcy is the most powerful.

How Do I Stop My Wages From Being Garnished?

Filing with a Chapter 7 or Chapter 13 bankruptcy will immediately stop your wages from being garnished. In fact, with the careful use of the Georgia exemption laws, you may even be able to force the creditor who garnished your wages to give some of it back. This is why it is imperative that you should consult with a bankruptcy attorney when faced with a garnishment. A bankruptcy petition preparer will only download the publicly available forms from the court's website and help you fill out the appropriate paperwork. They cannot give you legal advice; they will not attend the 341 meeting with you; and they do not know the intricacies of the bankruptcy code that will save you thousands of dollars and hours of grief.

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Filing a Proof of Claim in a Bankruptcy Case

4/24/2023

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Filing a proof of claim is an important step for creditors in a bankruptcy case. A proof of claim is a written statement filed with the bankruptcy court by a creditor, stating the amount of the creditor's claim against the debtor. The proof of claim must provide sufficient detail and supporting documentation to establish the creditor's right to payment. It must also comply with the requirements set forth in the bankruptcy code, local bankruptcy rules, and any applicable court orders.

The bankruptcy code provides strict deadlines for filing a proof of claim. The deadline for filing a proof of claim is set by the court and can vary depending on the type of bankruptcy case and the jurisdiction in which it is filed. In some cases, such as when a bankruptcy case is converted from one chapter to another, the deadline may be extended.

It is important for creditors to file their proof of claim in a timely manner, as failure to do so may result in their claim being disallowed. Additionally, creditors must ensure that their proof of claim accurately reflects the amount of their claim and any supporting documentation.

At Rountree Leitman Klein & Geer, LLC, we understand the importance of filing a proof of claim in a timely and accurate manner. Our experienced bankruptcy attorneys are available to assist creditors in navigating the complex bankruptcy process and ensuring that their claims are properly and timely filed. We can assist creditors in preparing and filing their proof of claim, ensuring that it complies with all applicable bankruptcy rules and procedures. We can also provide guidance on how to properly calculate and document a creditor's claim, ensuring that it is not challenged or disallowed by the bankruptcy court.

Contact us today to learn more about how we can assist you in the bankruptcy process.

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How Can I Get Rid of a FIFA (Writ of Fieri Facias) in Bankruptcy?

Five attorneys selected as 2024 georgia super lawyers

What Every Parent Should Know About Bankruptcy

Are my wages being garnished?

You've Been Sued

How Do I Stop My Wages From Being Garnished?

Filing a Proof of Claim in a Bankruptcy Case

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