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Chapter 13 in 13 Chapters
[by William J. McLeod] is the essential reference guide that chapter 13 attorneys should have at their fingertips to assist in their practice and to share with clients to help explain the bankruptcy process.
American Bankruptcy Institute
Reactive vs. Proactive
I’ve mentioned that sometimes it’s better to proactive than reactive. Being proactive is calling a bankruptcy attorney when you sense that the barn out back may be a fire hazard. Being reactive is calling a bankruptcy attorney when the barn is burning, you can’t remember where you put the garden hose while you wonder if water bill has been paid.
When clients do nothing until faced with a foreclosure notice, they are being reactive… which unfortunately places me in a reactive posture. After years of doing both, I’m certain that being reactive makes an otherwise average case more difficult and more expensive, because but for a scheduled auction some people would just hope that the finances will get better. But it’s that auction that pushes some people into finally getting their ‘house in order’, albeit quickly… and hopefully not too late. And for one of my clients, getting his house in order was what he wanted me to help them with.
After being retained by a reactive client, one of the first things I did was send a letter off to an attorney representing a lender. I let them know that I was representing the client for a bankruptcy case, and I asked that he please send copies of notices to me so that I may ensure everyone is properly listed on the petition and creditor matrix. A few weeks later, I received a copy of a notice of scheduled auction which I sent off to my client with note reminding him that his petition needed to be filed before the scheduled auction. The letter also reminded my client of the documents and information I needed to ensure that the paperwork was properly completed when filed.
About 10 days later, and about 2 weeks before the auction, the lender’s attorney calls me and leaves me a message. He wants to know if I still plan on filing a petition, since he has to hire an auctioneer, and go through the costs of publishing. He tells me he wants to avoid all of those costs if my client is going to file bankruptcy.
That put me into a bit of a predicament.
If I call and tell him that I plan to file by the auction date, his client avoids the expense. But also, the auction will not proceed, which means my client does not have to be concerned about getting me the information I need because there’s no longer that pressure to file the case and invoke the automatic stay by a date certain. No more auction means no need to be so reactive. Which means my client may delay his filing…. Until just before the date of the rescheduled auction… when he will again, likely be reactive.
And then I bet lender’s counsel will be displeased – because I told him I would file, but then didn’t. So he’d either think me a liar, which will likely lead to more unpleasantness for me, or he’d incorrectly assume that my client was acting in bad faith, which could lead to more unpleasantness for my client (and possibly more complicated and expensive legal proceedings).
Or, I could call up and ask him to delay the auction. I could ask for and perhaps receive a few weeks, or a few months. Or, I could just call up and say “I cannot tell you anything about anything.” Even though I am not saying anything, clearly, I’m saying something. Besides, I can honestly say that for reasons that are no one’s business (and you’re just going to have to trust me on this one), none of these strategies suit my client’s objectives. He doesn’t need a delay. So I thought about it a bit more, and I opted to do what I thought was best thing for my client.
I didn’t return the call. I figured lender’s counsel could read whatever he wanted into my silence.
Just before I filed the case, the lender’s attorney and I had a brief discussion. He expressed rather loudly his dismay at my not returning his phone call. He made some reference to how he’d long given up expecting what he called “basic courtesy” from younger lawyers (apparently, he has no idea how long I have been practicing). I guess he thought I was being rude.
“When another lawyer calls,” he railed “you should always return the call!”
I listened to his intemperate grumble, and thought to myself “not when doing so may be hurting my client’s interests.”
Notwithstanding his age and presumptive life experience, I really don’t think that my decision to not return his call is reflective of my generational station or some predisposition to be rude to colleagues. I tend more to think that it’s more reflective of my awareness of whose interests are supposed to be in the forefront of my mind.
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This entry was posted on Thursday, July 23rd, 2009 at 8:49 am and is filed under Bankruptcy, Chapter 13. You can follow any responses to this entry through the RSS 2.0 comment feed.
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