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Ellen
Ellen, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36714
Experience:  Bankruptcy Lawyer. Experienced.
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We filed Chap 13 over 14 months ago (still not confirmed) with

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We filed Chap 13 over 14 months ago (still not confirmed) with one lawyer due to loss of one income. Due to no communication from him we lost confidence and hired a new lawyer. The new lawyer's paralegal told us not to pay the Trustee the monthly Chap 13 payments because they were going to refile our Chap 13 as a Chap 7. So we did not pay for 2 months. She was in contact with the Trustee's office, but I am sure she did not tell them that she advised us not to pay. It ended up that we could not convert to a Chap 7 as we were on the edge of qualifying and the lawyer did not want to take a chance and have it kicked back for not qualifying. So we received a notice from the court to allow us to get current on payments, but that if we missed a payment it may be dismissed. We paid last month's payment 30 days after the due date and the Trustee filed a motion to dismiss based on the previous court document. What are our options?
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Customer: replied 6 years ago.
yes

How terrible!

Considered attending the hearing on the motion to dismiss. Tell the Court that you follow the directions of the paralegal and that your attorney did not appear to be familiar with your case. You can ask the court for leave to file an amended payment plan.
Customer: replied 6 years ago.
I thought of that, but there may not be a hearing. As the court order earlier stated in the "Order Granting Extension of Time to Bring Interim Payments Current" - "If debtors default on any futher interim payments, the Court may dismiss or re-convert the case on affidavit of Trustee without further notice or hearing." So if there is no hearing?
You will want to consider filing an objection to the dismissal and set it for hearing. You will need to contact the bankruptcy court clerk to schedule the hearing
Customer: replied 6 years ago.

Shouldn't we our attorney do that for us? What is our attorney obligated to do for us? What can we require our attorney to do? Can he decide he just doesn't want to be our attorney anymore? During our conversation he said we were just blaming the paralegal and him and that we just didn't want to take responsibility for anything. We have an appointment to talk with him in person on Tuesday. How long do we have to take action? On Tuesday it will have been 7 days since the Trustee filed "Trustee's Affidavit of Debtors' Default of Court Order Dated May 10, 2010".

Shouldn't we our attorney do that for us? What is our attorney obligated to do for us? What can we require our attorney to do?
yes your attorney should be doing this for you however he is not -- the only way the court will know that the attorney is not doing his job is if you let the Court know

Can he decide he just doesn't want to be our attorney anymore?
no not legally or ethically

During our conversation he said we were just blaming the paralegal and him and that we just didn't want to take responsibility for anything. We have an appointment to talk with him in person on Tuesday. How long do we have to take action? On Tuesday it will have been 7 days since the Trustee filed "Trustee's Affidavit of Debtors' Default of Court Order Dated May 10, 2010".
the court may enter the dismissal in any time
Customer: replied 6 years ago.

How do we let the court know if our lawyer is not doing his job?

 

Should we let the court know that we acted on advice of counsel in regards XXXXX XXXXX paying for the two month period and then paying within 30 days after the actual court assigned payment date (30th of each month).

 

If the court enters a dismissal, do we have any options?

 

Is there a reinstatement option?

 

How do we let the court know if our lawyer is not doing his job?

You will want to consider filing an objection to the dismissal and set it for hearing. You will need to contact the bankruptcy court clerk to schedule the hearing

Should we let the court know that we acted on advice of counsel in regards to not paying for the two month period and then paying within 30 days after the actual court assigned payment date (30th of each month).

Attend the hearing on the motion to dismiss. Tell the Court that you follow the directions of the paralegal and that your attorney did not appear to be familiar with your case.

 

If the court enters a dismissal, do we have any options?

yes but it depends upon too many factors for me to be able to answer at this time

Customer: replied 6 years ago.
Thank you for the information. We will proceed with talking to the lawyer first and if that doesn't work we will call the bankruptcy court clerk ourselves to schedule an objection to dismissal.
My pleasure.

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