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JoeLawyer
JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience:  Attorney in the practice of Bankruptcy Law since 1996
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How long before I get sued in a judgement wages attached

Customer Question

I filed Chapter 7 BK in FEB 07 w/attorney. Attorney made several mistakes on means test. As a result, Judge dismissed case as "abuse" & said I make too much money. My house is in foreclosure (moved out and rented another) & I have approx. $90K in unsecured debt.

Attorney amended my income once and still messed it up. Case is "Pending dismissal" and my attorney has my money and won't give me a straight answer on what is going on. They won't call me or give me info. My leased car, and only car (that I'm current on), lease was just deemed rejected because attorney did not give me re-affirmation letter in time or call me.

My question's: (1)How many times can the means test or the financial's be amended?

(2)How long can a case sit in this state of "pending" before I get a judgment or garnishments?

(3)What specific ACTION items should I take since I am not getting a phone call back?

(4)Should I ask for my $2K back since he's done nothing but make things worse?

(5)Should I re-file with another attorney though Im making 20% more money now?

(6)Should I sue him for damages since I had a 720 cred score prior to filing and his advice has ruined my financial life?

(7)Filed Separated; my rent is $1760 mo (above state mean), I have a 6 yr old daughter. I pay for everything. I can supply more info if needed.
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  JoeLawyer replied 6 years ago.

Hi gruvee:

I cannot tell you what to do since it is illegal to give advice to someone in a state in which the attorney is not licensed, and even if the attorney is licensed in the state in which the customer resides, the attorney still cannot give advice on this site for other reasons under the Rules of Professional Responsibility. BUT, I can give you information. So, if it seems like I am not answering some of your questions, it is because I can't: those questions are requesting advice (i.e. "what should I do?") and I can't answer those, but I will do the best I can in giving you helpful, non-advisory information.

Okay here we go...

(1) How many times can the means test or the financials be amended?

There is no limit on the number of time times the Means Test (called Form 22) and other financial documents (such as Schedule I, the monthly income statement, and Schedule J, the monthly expense statement) can be amended. However, after several amendments the Court might determine that the amendments are not being made based on the financial facts, but is a rather disingenuous attempt to finally make the numbers be something that will get approved. It is generally a good idea for a debtor to review the documents closely and be sure the documents comport with paystubs/business profit and loss statement prior to signing and filing them.

(2)How long can a case sit in this state of "pending" before I get a judgment or garnishments?

It is generally a violation of the Bankruptcy Code for any creditor to garnish a debtor in bankruptcy pursuant to 11 USC 362 (the automatic stay provision). So, no garnishment can commence unless and until the bankruptcy case is dismissed. "Pending dismissal" does not let the creditors do anything: the case has to actually get dismissed before the creditors can go after the debtor unless the creditor files a motion requesting permission to pursue the debtor or property with the Bankruptcy Court and the motion is granted by the court (called a Motion for Relief from Stay) and the debtor has an opportunity to object to the creditor's motion. Also, some creditors are not held up by the stay, such as child support creditors. But, in the lion's share of cases, no garnishment can begin unless and until the case is actually dismissed.

The amount of time a bankruptcy case can sit under the cloud of a motion to dismiss for abuse filed by the U.S. Trustee (UST) is up to the court. Both sides (the debtor and UST) can file continuances to gather information as long as the motions are in good faith. The court is free to grant or deny such motions as circumstances warrant.

I have had cases under pending dismissal go several months until we got them resolved.

(3)What specific ACTION items should I take since I am not getting a phone call back?

I cannot tell you what to do since that would be giving advice. But, I can tell you that people who are not getting responses from their attorney do a host of things: for example, they may send the attorney notice in writing that they want communications to be improved, they can dismiss the attorney and hire a new attorney, etc.

(4)Should I ask for my $2K back since he's done nothing but make things worse?

Attorneys are not allowed to charge a fee and then not perform the work. If you opt to hire a new attorney, that new attorney can advise you whether to try to get your money back from the original attorney. Or, if you opt to stress to your existing attorney that you want to see action on his or her part, you may not need your money back if he or she starts earning his or her keep. This is really up to you, and there is no "standard" of what to do that I am aware of. I would say do what you are comfortable with.

(5)Should I re-file with another attorney though Im making 20% more money now?

Again I can't give you advice. The Form 22 (Means Test) is based on the debtor's prior 6 months of income, so the higher the previous 6 month's income, the harder it is for the debtor to qualify for Chapter 7. So, one thing debtors consider when deciding whether to file a new case is under which case (the current one or a new one) would show the lowest income for the 6 months preceding that case. Another consideration is that a bankruptcy case dismissed for abuse can make some or all of the debts in the dismissed case non-dischargeable, making a future case futile. At the very least there is often a 180 day bar to re-filing, during which time creditors may pounce.

(6)Should I sue him for damages since I had a 720 cred score prior to filing and his advice has ruined my financial life?

Please see my answer to question #4 above.

Whenever debtors file Chapter 7 and the UST files a motion to dismiss for abuse, debtors have some options. The debtor may be able to amend the documents to comply with Chapter 7, but sometimes there is no way to to make the numbers work out so that Chapter 7 is possible. Of course, if the debtor has more dependents than what is listed on his or her Form 22, this is a major thing the debtor may want to amend since adding the correct number of dependents certainly may help the debtor stay in Chapter 7. Another possibility is that even if the Form 22 indicates abuse, sometimes the debtor can still stay in Chapter 7 if he or she can convince the judge the the financial future is more bleak than the last 6 months, and thus overcome the presumption of abuse. Another common outcome is that the debtor converts his or her case to Chapter 13. Conversion to Chapter 13 often gets rid of the motion to dismiss by allowing the debtor to make payments to the court for 5 years in a Chapter 13 plan, thus allowing the debtor to restructure or discharge much or his or her debt, make affordable payments for 5 years, and still retain protection from the creditors and get a discharge. A debtor in Chapter 13 doesn't necessarily pay back everything he or she owes over 5 years, the debtor simply pays as much as he or she can afford over 5 years, and then at the end of the 5 years the remaining balances owed are discharged. This is a pretty simplistic explanation of Chapter 13, but you can ask your attorney for details as they relate to your specific debts and circumstances.

I hope this helps and a positive feedback is always appreciated if this was useful to you. Good luck gruvee!

Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience: Attorney in the practice of Bankruptcy Law since 1996
JoeLawyer and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 6 years ago.
This was very articulate based on the cryptic and emotion based questions I had asked. Thank you very much for a/the thorough answer(s).
Expert:  JoeLawyer replied 6 years ago.

No problem gruvee, I am happy to help any way I can. I certainly understand that bankruptcy is an emotional process.

Thanks for using JustAnswer.com.

Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

 

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