Every now and then, I get a call from someone who already has a bankruptcy case pending. Sometimes, they do not like how things are going with their attorney. Other times, they don’t have one at all and find that they are in over their head. And sometimes, by the time they are calling me, they find themselves in what can best be described as a world of hurt. Today, I received such a call.
The debtor’s chapter 13 case was filed almost two months ago. There is still no plan filed. No post-petition mortgage payments have been made. The debtor just got served with a summons and complaint because not all creditors were properly listed on the schedules (and I’m not sure the matrix was done right). The IRS has filed a notice that prepetition tax returns have not been filed. There are motions for relief from stay from secured creditors, and from the tone of them, they seem frustrated. No plan payments have been made, and the creditors meeting is soon. I am also assuming that no tax returns or payments advices have been sent over the chapter 13 trustee. In addition, by looking over the schedules, it appears that the debt is too high for chapter 13 eligibility. After I got all that from reviewing PACER, I decided to ask an easy question first:
“Why haven’t you made your post-petition mortgage payments?” I asked.
“No one told me I had to,” was the reply.
Sigh. A bankruptcy lawyer would have.
The debtor also honestly believed that bankruptcy was an easy process. It’s just a few forms, a meeting, and then you’re protected, right? And the forms were sold at an office supply store. This is not the first time I’ve heard such sentiments. Just a few weeks ago I was talking to a debtor who filed 4 cases in 12 months. For real. When I asked why he did it, he told me that it was just so “easy” to go down and get the automatic stay and stop the foreclosure sale. It was just a few forms and it was just so easy!
Perhaps even more frustrating, I have heard such malarkey from my own colleagues (not consumer bankruptcy attorneys, of course. Most of them know better.). I was once at a meeting where an attorney from a big firm in town essentially stated in a room full of other attorneys that the only thing consumer attorneys did was fill out forms. At the risk of sounding a tad dramatic, I was aghast.
One clear insinuation was that the “heavy lifting” in the legal world was done by the power-house firms, one of which this person worked for. Can’t say I agree with that sentiment. Another clear insinuation was that a well-trained border collie could prepare a bankruptcy petition and schedules, and even make a cheerful companion at the creditor’s meeting. It’s this false impression of how things really work that lead debtors like some of the callers I speak with into the world-of-hurt they now find themselves in.
I do not always get calls from debtors who have pending bankruptcy cases. I have been asked by people considering filing bankruptcy if I could just “look over” their paperwork (that they prepared themselves) to see if it was acceptable – as if I were correcting a vocabulary quiz, or checking an essay for grammar, neatness and format. Also I have been asked to instruct how to complete schedules. My response is always “read the instructions yourself or hire a bankruptcy lawyer.”
Today’s debtor learned for the first time that they may not qualify for chapter 13. It’s either a chapter 7 or a chapter 11.
“What’s the difference between chapter 13 and chapter 11?”
I replied “There are two important things you need to take away from this phone conversation about why you want to hope for chapter 13 over chapter 11: chapter 11 is expensive and complicated.”
“Why didn’t anyone tell me that?”
A bankruptcy lawyer would have. And for the record, most good bankruptcy lawyers don’t walk around asking “why didn’t anyone tell me that?” (Although I have met one or two from time to time). Our job is to know it, and if we don’t know it, our job is to at least know where to look to find out what we do not know enough of. And, quite frankly, to take the blame if we do not know what we should have known when we should have. Still with me here?
I would not call a dentist to learn how to extract my own teeth. I would not call a surgeon for over-the-phone instructions on how to remove my appendix. And I would not call an auto mechanic to ask him or her if I should remove the round-thing that’s under my hood that I think is screwed to the radiator and might be making an annoying noise and emitting smoke when I go over 55 mph. Or when I turn on the A/C. Especially on humid days.
If you’re concerned about your teeth, call a dentist. If you’re concerned about appendicitis, or perhaps the risk of septicemia, call a doctor. If your car is making strange noises or emitting smoke in places where it should not be, call a mechanic.
If you have real estate and you want to use the bankruptcy process to keep it out of foreclosure, get a bankruptcy lawyer. You can do it now. Or you can do it when things are worse. And unless you know what we know, things are likely to get worse the longer you move forward without a bankruptcy lawyer.
Related posts:
- Still Think You Can File Bankruptcy Without An Attorney?
- What Does a Good Bankruptcy Attorney Do?
- Wondering What a Bankruptcy Attorney Really Does?
- Filing Bankruptcy Without an Attorney
- Why Bankruptcy Lawyers Require Fees Before Filing
Tags: Bankruptcy, bankruptcy attorney, Chapter 11, Chapter 13, Homes, homesteads and real estate
Awesome blog entry. Spot on.