Frequently Asked Questions | Flagler Beach Bankruptcy Lawyer

When Should I Consider Pursuing Civil Litigation?

Whether you are facing a legal dispute in Florida, considering legal action, or seeking representation in a civil case, the Law Offices of Scott W. Spradley will help you successfully resolve disputes with clarity and purpose. The first step of that process, however, is understanding the process. Our civil litigator in Flagler Beach helps clients understand and participate in the civil litigation process to the extent it serves their best interests. We believe informed clients make the best decisions for themselves and their stakeholders.

Here, we provide answers to some common questions we initially receive from our clients. If you want answers more specific to your unique legal situation, contact us at 386-693-4935 to schedule a free consultation.

Civil litigation is a legal process involving two or more parties who need to resolve a dispute through the court system. It typically involves one party (the plaintiff) seeking damages or specific remedies from another party (the defendant) for alleged wrongdoings, like a breach of contract, personal injury, or property dispute.

The parties in civil litigation can be individuals or entities, like private citizens or residents, public officials, private businesses, non-profits, or government agencies.

When civil disputes occur – typically because you have suffered some kind of harm in the form of property damage, personal injury, or breach of contract – the first step is typically discussing the claims with the at-fault party. A settlement or another resolution could be reached through negotiations. When talks break down, however, you might want to consider civil litigation. Contact our civil litigation lawyer in Florida to discuss your case and what your best legal options might be.

Civil litigation, as opposed to criminal litigation, involves disputes between people, businesses, and other entities. While each lawsuit has its own particular circumstances, most follow the same steps summarized below.

Pleadings Stage: During the pleadings stage, the plaintiff files and serves a complaint on the defendant(s). In the complaint, the plaintiff states, among other things, the harm they incurred, how it occurred, and why the defendant is liable for that harm. Next, the defendant will prepare an answer in response to the complaint. The defendant may also file a counterclaim or cross-claim. The plaintiff will then have an opportunity to reply to any pleadings that require a response. While this is a simple explanation, the pleadings stage can involve other steps, such as the defendant filing a motion to dismiss and a hearing to address any motions filed.
Discovery Stage: The discovery stage is when both parties have the opportunity to request information and documentation from the other party. This is accomplished formally through the filing of interrogatories and requests for production. It is also at this stage that witnesses are deposed and their testimonies obtained.
Trial Stage: At the trial stage, the parties will each be able to present opening arguments. Then, the plaintiff will be able to present their case, and the defendant their defense before a judge and/or jury. Evidence is produced and testimony is taken from witnesses, and the parties are allowed to have closing arguments. The judge will issue a decision or the jury will reach a verdict.
Appeals Stage: The party that does not prevail at trial may pursue an appeal to have the decision reviewed by a higher court. Appeals can continue until there are no higher courts with jurisdiction to hear the matter.

Again, this is a general summary of lawsuits. Each suit may proceed differently according to the facts of the case and the jurisdiction where the case is heard.

Yes, many civil disputes are resolved through negotiation, mediation, or arbitration – collectively referred to as alternative dispute resolution (ADR) methods – before going to court. Alternative dispute resolution methods can be more cost-effective and less time-consuming than litigation.

There are, however, pros and cons to each method, so the decision to use any ADR method should be carefully considered with the help of a civil litigation attorney. In fact, our civil litigation attorney in Florida can help you with negotiations during most of these processes, including the provision of insightful, strategic counsel.

Civil litigation is wide-ranging and encompasses a broad spectrum of case types, including:

Business disputes
Landlord/tenant disputes
Probate disputes
Real estate disputes
Financial disputes
Personal injury disputes
Breach of contract disputes
Employment disputes
Family disputes
Divorce
Civil rights violations

While all the above are types of civil litigation, how they proceed and the proper procedure for each can vary significantly.

Initiating a civil litigation case involves filing a complaint in the appropriate court. To do so, you need to ensure you have the right forms, persuasive arguments, and legal support to accompany the filing.

For most cases, unless it's a small claims matter, we recommend consulting with an attorney who can help you draft and file the complaint in the appropriate court. If you have a legal dispute in Florida, contact our litigation attorney to guide you through the process and represent your interests.

There is no magic formula for determining exactly how long it will take to resolve a lawsuit, however, there are some factors that can help provide a timeframe for resolution.

Type of Case and Fault: If liability is clear and not at issue in an accident, the case is more likely to reach a prompt resolution. Class action lawsuits and medical malpractice lawsuits tend to be some of the lengthiest.
Parties to the Case: The parties to the case have a huge bearing on how long the case takes to be resolved. Cases involving multiple parties tend to take longer to resolve. Also, the willingness of the parties to work together towards a resolution is a huge factor in the length of time to resolve a case.
Damages Involved: The higher the damages, the more likely the defendant will put up a vigorous defense and the longer the case will take to reach a conclusion.

There may be ways to expedite a lawsuit which is a matter best discussed with our civil litigation attorney.

Generally speaking, the burden of proof in civil cases is that the plaintiff must prove their case by a preponderance of the evidence. A preponderance of the evidence is a lower bar than a criminal prosecutor's burden to prove the alleged suspect guilty beyond a reasonable doubt. In civil cases, you must show that more likely than not the evidence proves your claim, and this is done by a preponderance of the evidence.

In some instances, a clear and convincing standard is required. For example, in many states, if a plaintiff seeks punitive damages, then they may have to show clear and convincing evidence, which is a showing of evidence in between the standards beyond a reasonable doubt and by a preponderance of the evidence.

Civil litigation attorneys can vary in how they charge for their services. Some of the most common methods include:

Contingency Fees: In a contingency fee agreement, the plaintiff pays nothing up-front. Instead, the attorney will receive an agreed-upon percentage when the plaintiff receives their damages. This is helpful for plaintiffs who do not have money to pay upfront. If the plaintiff does not receive any damages, the attorney does not get paid.
Flat Fees: In flat fee cases, the attorney agrees to represent the plaintiff for a specific amount of money. No matter how the case concludes, the plaintiff is generally responsible for paying this amount.
Hourly Rates: In hourly fee cases, the plaintiff will receive a bill from their attorney for the work completed by the attorney at an hourly rate. Often, in these circumstances, a retainer is required.

In all three types of billing, the plaintiff is generally responsible for paying all costs associated with their case on top of the attorney's fees. In some cases when the plaintiff wins, they might be able to demand and receive attorney fees from the defendant.

Contact a Civil Litigation Lawyer in Flagler Beach Today

At Law Offices of Scott W. Spradley, we are committed to providing you with sound legal advice and representation tailored to your needs. If you have specific questions or require legal assistance with a civil dispute in Florida, reach out to our civil litigation attorney by filling out the online form or calling us at 386-693-4935 to schedule a free consultation. Your legal rights and interests are our priority.

What Happens if I Die Without a Will in Florida?

Dying without a will means you die intestate. Your assets and belongings will get passed to your heirs according to your state's intestacy laws.

If you die without a will, your estate will pass to others through your state's intestacy laws. If you have no children, then property will be disbursed to family members. If there are no heirs according to your state's intestacy laws, then the state may acquire the property. So, even if you do not have children, you still need a will if you do not want the state to make decisions for you about who gets what from your estate.

Keep in mind you do not have to create a will to benefit only family. A will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial wellbeing of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values.

Naming a legal guardian for your underage children is a common provision in a will. You also have the ability to appoint a conservator for adult children who may be unable to make certain decisions.

If you do not appoint a legal guardian via a will, the court will appoint one upon your death. For this reason, it is important even if it seems like commonsense to make sure you designate a guardian in your will.

The costs for an estate planning attorney depends on multiple factors. First, what all do you want in your estate plan? How much in the way of assets fo you have? The more complicated your estate plan, the more costs you will expend. Second, how does the attorney charge? Is it by flat fee, which is most common among estate planning attorneys, or by hourly rate? In the former, less services may be included in the fixed rate, but in the latter, hours can add up quickly. You want to be sure exactly what you are getting (and not) for the price you are paying. You may pay a couple hundred dollars, or you could pay a couple thousand dollars.

A power of attorney is essential for people who are unable to make important medical or financial decisions on their own behalf, usually because they are incapacitated or suffering from a medical condition. There are five types of powers of attorney, each with their own purpose:

Durable power of attorney
Medical power of attorney
General power of attorney
Limited (special) power of attorney
Springing power of attorney

Contact an Estate Planning Lawyer in Florida Today

At Law Offices of Scott W. Spradley, we know you have lots of questions about estate planning. Our estate planning lawyer in Florida is here to answer your specific questions. Contact us either by using our online form or calling us directly at 386-693-4935 to schedule a free consultation.

What Goes Into an Estate Plan in Flagler Beach?

At the Law Offices of Scott W. Spradley, we believe informed clients make the best decisions about their estate plans. That's why we want to break down complex terms and clarify confusing principles so that you make the right choices for your estate, too. Contact our office either online or at 386-693-4935 for a free consultation to get specific legal advice for your estate plan. In the meantime, here are responses to some of the most frequently asked questions we get when new clients come to our office in Flagler Beach.

Estate planning is a process allowing you to arrange how you want your assets to be managed and distributed upon your death. Sometimes, if you have limited assets, limited beneficiaries, and limited instructions on how to distribute your assets to the beneficiaries, planning is pretty straightforward. On the other hand, the more assets, the more beneficiaries, and the more instructions may require an estate plan that is more complex and varied.

Generally, there are two components of estate planning with one involving the legal aspects of it and the other involving the non-legal aspects of the plan. Your estate planning attorney can help with both. Legally speaking, your lawyer will review your personal and financial situation and create documents that address the latter. Non-legally speaking, your lawyer will develop an investment strategy for retirement purposes.

An estate plan will include the documents that accommodate your specific needs. It may involve some or all of the following:

Last will and testament
Living trust
Irrevocable trusts (e.g., life insurance trusts, gift trusts, special needs trust, charitable trust)
Conservatorship
Guardianships
Asset protection from divorce, creditors, others
Health care directives, including medical powers of attorney, living wills, health care proxy, do not resuscitate (DNR) or do not intubate (DNI) orders
Succession plan for business
Charitable planning

Is Bankruptcy a Solution for Me?

The decision to file for bankruptcy is a very personal one, and it's one that should not be made until you have reviewed all of its pros and cons. Remember, too, that bankruptcy not only gets rid of many of your debts or manages them more effectively, but it has lasting effects on your financial future - positively and negatively.

A number of factors should be considered when thinking about filing for bankruptcy. One important factor to keep in mind is that if you file for bankruptcy now and need to file again, you'll have to wait eight years.

Some "pros" of filing bankruptcy are:

You may be able to save your home through bankruptcy
Your unsecured debts such as credit card debt and medical bills are generally "discharged," or eliminated through bankruptcy
Personal debt from the guarantee of business obligations and from mortgage deficiencies are generally eliminated through your bankruptcy discharge
All collection activity, including foreclosure court cases, and including collection calls and letters, are immediately halted when your bankruptcy case is filed
Your home, car and certain other property cannot be taken from you to pay your general creditors
You may be able to eliminate or modify secured debt through a bankruptcy
The Bankruptcy Code protects you from future collections processes such as repossession, foreclosure and frozen bank accounts during your bankruptcy case. In fact, any creditor that violates the law can be held in contempt of court
Chapter 13 Bankruptcy may allow you to strip your 2nd mortgage on your home

Be sure to look at the "cons" of bankruptcy as well. Filing without knowing the consequences in advance could be an unwelcome surprise. Here are some factors to consider:

If you own nonexempt property (i.e. property that exceeds the personal allowance that is granted to you under bankruptcy law), it could be liquidated or sold to pay off creditors, if you cannot afford to buy it back yourself. During your Free Consultation, we will look at your personal property to see if you will have an issue
A bankruptcy discharge is permitted to be reported on your credit history for several years. On the other hand, if you continue to accumulate late payments, your credit score will drop anyway, if you do not file a bankruptcy
The legal costs for filing bankruptcy should be a factor that you consider in making the decision to file, or not. At my firm, I will work with you to see if we can work out a suitable payment arrangement.

Critical Differences Between Chapter 7 & Chapter 13 Bankruptcy

As a bankruptcy attorney, I know the importance of thoroughly understanding and keeping current with federal bankruptcy law. Should you elect to schedule a meeting with us, my staff will be able to provide you with all of the information you need to help me to help you make a decision regarding filing for bankruptcy. With the benefit of the information that we will exchange at and following your Free Consultation, I will personally recommend to you what type of bankruptcy I feel is appropriate for your financial circumstances, if bankruptcy is the means for you achieve your personal financial objectives. Having an experienced bankruptcy attorney at your side will give you the best chance to obtain the results you need from your bankruptcy. Below are some differences between the two most common types of bankruptcy.

If you have overwhelming debt that you find you just cannot pay due to circumstances beyond your control, such as the loss of a job, divorce, foreclosure or unexpected medical bills, then Chapter 7 is possibly the type of bankruptcy you need. If you do not have the means to repay your debt and just don't see a way out, the bankruptcy laws allow you to file for this type of protection from your creditors. When the bankruptcy is filed, all of your liabilities and assets will be reviewed by the Bankruptcy Trustee assigned to your case. The bankruptcy laws allow you to retain a modest amount of assets without strings attached, including your personal property to a certain dollar level, and your residence, without regard to its value. But even if your assets exceed your personal allowance, you may still be permitted to keep those assets by paying money over time to your Bankruptcy Trustee. I will advise you before your case is filed about the projected cost involved to retain those assets, as you eliminate your debt in a Chapter 7 case. Filing a Chapter 7 bankruptcy is a relatively smooth procedure, and the entire process lasts approximately three months in many cases. But you get immediate relief as your creditors are required by the bankruptcy law to cease all efforts to contact you as soon as your bankruptcy case is filed. This immediate relief is the first step for many individuals to enjoy their Fresh Financial Start.

To determine whether you qualify for a Chapter 7 Bankruptcy case, the court requires us to evaluate your financial situation through a "means test". The purpose of this is to determine whether you have the "means" to repay certain aspects of your debt. If it appears that you have the ability to repay some of your debt, then a Chapter 13 bankruptcy may be more appropriate. At The Law Offices of Scott W. Spradley, P.A., I will carefully review your financial situation with you in order to determine the best course of action for your specific circumstances. For complete information on a Chapter 7 bankruptcy filing, contact us to schedule your Free Consultation.

A Chapter 13 bankruptcy is also called a wage earner's plan. It enables individuals with regular income to develop a plan to repay all or part of their debts. Under this chapter, you would propose a repayment plan to make installments to creditors over three to five years. If your current monthly income is less than the applicable state median, the plan will be for three years unless the court approves a longer period "for cause." If your current monthly income is greater than the applicable state median, the plan generally must be for five years. In no case may a plan provide for payments over a period longer than five years. During this time the law forbids creditors from starting or continuing collection efforts.

Chapter 13 offers individuals a number of advantages over liquidation under Chapter 7. Perhaps most significantly, chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Nevertheless, they must still make all mortgage payments that come due during the Chapter 13 plan, on time. Also, under the right circumstances, Chapter 13 allows individuals to strip their second mortgage from their home. For individuals who qualify for this relief, once the Chapter 13 plan is successfully completed, the individuals emerge from bankruptcy without a second mortgage on their home. Another advantage of Chapter 13 is that it allows individuals to reschedule secured debts (other than a first mortgage for their primary residence) and extend them over the life of the Chapter 13 plan. Doing this may lower the payments. Chapter 13 also has a special provision that protects third parties who are liable with the debtor on "consumer debts." This provision may protect co-signers. Finally, Chapter 13 acts like a consolidation loan under which the individual makes the plan payments to a Chapter 13 Trustee who then distributes payments to creditors. Individuals will have no direct contact with creditors while under Chapter 13 protection.

I would be pleased to review your financial situation with you to determine if you can find debt relief through Chapter 7 or Chapter 13 bankruptcy. A successful bankruptcy could greatly improve your future financial situation and give you a new start in life.

Contact the Law Offices of Scott W. Spradley, P.A. to discuss your bankruptcy or other legal debt relief options.

FAQs

Q: What Are the Benefits to Filing a Bankruptcy Case?

Q: How Long Does the Bankruptcy Process Take?

Q: What Types of Debts Will Survive My Bankruptcy Case?

Q: How Do You Determine Which Assets and Which Debts Will Be Included in a Personal Bankruptcy Case?

Q: How Many Times Do I Go to Court in My Personal Bankruptcy Case?

Q: Do I Have to Give up All of My Property in a Bankruptcy Case?