People are finding out the hard way that filing bankruptcy without an attorney can be an unwise decision. If mistakes are made in a bankruptcy, the case can get dismissed. If the debtor files bankruptcy again, they can be considered a “repeat filer.” Under BAPCPA, this can pose real problems.
With BAPCPA, Congress amended the bankruptcy code to deter what it considered were “serial filers.” If a debtor files bankruptcy, and they have had a bankruptcy case pending in the one year period prior to filing, the automatic stay (an Order for Relief which becomes effective upon the filing of the petition) terminates 30 days after filing. It can only be continued if the debtor files a motion within the 30 day period and the court holds a hearing within the 30 day period. If the debtor doesn’t file the motion and have the court hear it within the 30 days, the stay terminates. Also, if at the hearing the debtor does not have an acceptable explanation as to how there has been a change in circumstances that justifies the new case, the stay may terminate. (This is also particularly problematic if a debtor has had two cases pending in the year prior: the stay does not go into effect at all).
The thing is, there are serial filers, and then there are serial filers. It’s one thing to file bankruptcy petitions for improper purposes and do it over, and over and over again. But there are others who file bankruptcy petitions that end up getting dismissed. So how can a case get dismissed?
Well, if you fail to file or amend schedules, a statement of financial affairs, or other important and mandatory documents the case may be dismissed. If you do not make plan payments or otherwise adhere to a confirmed plan, the case can be dismissed. A good attorney will ensure that this does not happen because a good attorney will know what needs to be done and when. I mention this because I have spoken to a few people this week who have started their conversations with “I tried filing bankruptcy myself and it (a) went bad, (b) went real bad or (c) went real bad and got dismissed and the foreclosure is next week….so now I think I need a lawyer.” After listening to the details, these dismissals were probably avoidable.
Is losing the protections of the stay a big deal? You bet. For most, the automatic stay is the one reason people actually look forward to filing bankruptcy to begin with. The stay stops all collection activity in its tracks. If the stay terminates, it terminates “as to the debtor.” 11 USC Section 362(c)(3)(A), (and see In re Jump (Jump v. Chase Home Finance, LLC, Bankruptcy Appellate Panel No. MW-06-031, decided on December 28, 2006 – I am happy to email the decision upon request). This means that civil law suits can continue, collection activity can start, and the phone will start ringing off the wall once again. Not fun. Not fun at all.
The best protection any debtor facing bankruptcy can get is to get a good bankruptcy attorney. You may not want to pay for an attorney, but the bottom line is, you do not want to pay the price for not having one who can help you keep your case from getting dismissed….and from reaping the benefits afforded by the automatic stay.
Related posts:
- Pro Se Perils: No Ticket and No Excuse
- When You Discover that You Are a Creditor in a Bankruptcy Case…
- Top Ten Reasons to Hire an Attorney for Your Chapter 13 Case
- Pro Se Perils
- “I Can Stop Your Foreclosure!”
Tags: Bankruptcy
Pro Se Perils: No Ticket and No Excuse
There seem to be debtors everywhere who think they can file bankruptcy without an attorney. Of course, in many, many cases, debtors only end up causing themselves greater problems. A case out of the Eastern District of Pennsylvania proves my…