James Schwitalla, Esquire
Regardless of whether you are a new arrival or your family has been established here for generations, it important to understand the law that governs the relationships between debtors and creditors. I am honored to be able to provide you some insights into this area of law in this month’s SPOTLIGHT INTERVIEW of bankruptcy attorney, James Schwitalla.
Q: James, thank you for taking the time to sit with us. First off, please tell our readers what types of cases you handle in your practice, and a little bit about your background.
A: Thank you, Elina! It is truly an honor and a privilege to speak with you, and to be able to provide your readers with insights into what rights debtors have, and what remedies are available to creditors.
The name of my firm is The Bankruptcy Law Offices of James Schwitalla, P.A., and the great majority of my cases are bankruptcy cases. But bankruptcy court is only one of the courts where debtors and creditors go to settle their differences. Many times they also find themselves state court and federal district court, where I represent clients as well. I represent debtors (people who owe money) in Chapter 7 and Chapter 13 bankruptcies, as well as defending them in state court; and I represent creditors (people to whom money is owed) in cases filed under all bankruptcy chapters, and in state and federal district court. So I know the area of law from both perspectives.
As for my background, I am your gringo, Miami-Native lawyer who speaks Spanish fluently. I was born at Doctor’s Hospital in 1964, and have lived here all my life, except for 4-1/2 years I went to school in Fort Worth, Texas, where I earned a Bachelor’s of Science Degree in Accounting from Texas Christian University (GO FROGS!). Before that, I attended Our Lady of the Holy Rosary elementary school in Perrine, and Christopher Columbus Catholic High School for Boys. After graduating from TCU in 1986, I was recruited by a large, global accounting firm, and worked for them for a year and a half, and became a Certified Public Accountant. Then I decided to get married and go to law school at the University of Miami. I graduated from UM in 1991, passed the Bar exam in the same year, and went out on my own. I have worked for myself ever since.
Q: What prompted you to become an attorney?
A: Working for that huge accounting firm didn’t give me the sense that I was helping people. The clients I worked on were big companies. I had a desire to help individuals, families, and small businesses, and I thought becoming a lawyer would best position me to do just that.
Q: What sort of cases are you most passionate about?
A: I’m passionate about all my cases. But if I had to pick one class of cases that I’m most passionate about, it would bankruptcy cases that were started and messed up by a different bankruptcy attorney or law firm. The area of bankruptcy law, like immigration, is full of attorneys that look at their practice primarily as a business. Accordingly, their focus is on profit, instead of being committed to serving their clients’ needs first. I am proud that my practice is less profitable than that of most bankruptcy attorneys. It shows that I am focused on putting my clients’ needs before my own. One of my guiding standards is Honor before Profit.
Q: Do you encounter clients whose immigration/citizenship status has some significance to a particular case or transaction? If so, why so?
A: I am happy to say, no. Except in rare circumstances, a person’s immigration/citizenship status is irrelevant to their rights as a debtor or the remedies available to them as a creditor. Certainly this is true for persons who are here visas or permanent legal residency. But, even in cases of undocumented members of our community, this is true. In my 27 years of practice, of the dozen or so undocumented persons I have consulted with, all but one was faithfully filing and paying their income taxes. As a result, Uncle Sam knew their names and current addresses, so filing a bankruptcy was not giving him any information that he didn’t already have. In all of those cases, we filed bankruptcies and my clients received their discharges.
Q: What are the “rare circumstances” you referred to above, where a person’s immigration/citizenship status could affect their case?
A: It has to do with the homestead exemption. As many of your readers know, ordinarily the equity a person has accumulated in their home (that is, the amount by which the value of the home exceeds the amount they owe on their mortgage(s)) is protected from the claims of unsecured creditors such as credit cards, medical bills, and the like. This is so because the Constitution of the State of Florida provides all “natural persons” a homestead exemption. To impress the homestead character upon a property a person owns, two things are needed: the person must occupy the property; and the person must have the intent to permanently reside thereon. There is a line of cases that says unless a person is a citizen or a permanent legal resident, they cannot have the intent to permanently reside on the property. However, a more recent case has softened that ruling by holding that if a close family member of the non-citizen/non-permanent legal resident lives in the home, and that close family member is a citizen or permanent legal resident, then homestead character does attach to the property.
Q: What do you like best about your work?
A: (Laughs) That’s easy! Helping people.
Q: How can our subscribers reach you for a consultation?
A: First of all, the consultation is free unless the client is currently in a bankruptcy, or was just dismissed from a bankruptcy. The only thing they have to do is call the office at 305.278.0811, and Mary, Michele, or Karina will schedule an appointment for us. They can also visit my website at www.MiamiBankruptcy.net .
Thank you, James, for sharing your knowledge with our subscribers. This is Elina signing off until next month’s spotlight interview. Have a great month!