I filed chp 7 bankruptsy and it was discharged 6/1/ll. My former divorce attorney found out that a criminal case against an escrow agent who stole the funds from the sale of our formerly joint owned home came up with some restitution post discharge and she sent a fax to the criminal attorney that all assests should go to her account. ( a former order), until dispersed by the judge. Judge ordered all assests out of her account 50/50 when I found out about this from my x's atty. My former divorce atty discharge 1/ll accepted the cashiers check 8/5/ll and never told me about it. She still holds $10,500 of her discharged fees. She claims that this is a community assest and according to "Stpeovich v Davis " she has right to enforce her lein. I insisted my BK atty reopen the case as this is alot of money to me and I am not working. The criminal atty delivered a check to the old atty. 2 months post discharge and she has kept the money over a year.I did write that it is a possiblity that I may get some type of criminal restitution in the future. It is only because of the efforts of the DA and police for 6 years that something came of this. She did not represent me in any way in this case. The trustee called by BK atty after only reading her paperwork and said this looks like community property. The divorce was settled 6/27/10. How can this be? I have a hearing 7/24/11 BK atty on vacation , I would like to find a case to quote. Marilyn
Country relating to Question: United States
State (if USA): California
searching for cases online regarding criminal restitution as an assest, and this case which my x atty quotes giving her a right to put a lein on anything.
If you signed a fee agreement giving your attorney a lien on the proceeds of your dissolution to pay the attorney's hourly fees, and the contract was signed by you before the filing of your bankruptcy petition, then the lien survives your bankruptcy and remains enforceable against you for the attorney's fees. See Fletcher v. Davis (2004) 33 C4th 61, 66, 14 CR3d 58, 62; In re County of Orange (BC CD CA 1995) 179 BR 185, 192.However, an attorney who secures the payment of hourly fees by acquiring a charging lien against the proceeds of the client's litigation (judgment or other recovery) acquires an interest adverse to the client and thus must comply with Cal. Rules of Prof. Conduct. (RPC) 3–300: i. e., the lien is unenforceable unless:1. Its terms are “fair and reasonable;” 2. The transaction is fully disclosed in writing to the client; and 3. The client is given a copy of the agreement and the opportunity to seek independent legal advice and thereafter consents in writing. Fletcher v. Davis, supra, 33 C4th at 71–72. I very much suspect that the attorney did not provide you with the notice and opportunity to seek independent counsel concerning the attorney's lien, and therefore, the lien is unenforceable against you, which would mean that the attorney's debt is discharged by your bankruptcy. However, this creates an ancillary problem that you would have to discuss with your bankruptcy lawyer: assuming that the attorney has no right to the restitution, then does the bankruptcy trustee get the money or do you? Obviously, if you can't protect the assets with an exemption, like the homestead exemption, then this entire exercise will be a waste of time -- because your recourse would be to file a motion for contempt with the bankruptcy court, and as soon as you do, the bankruptcy trustee will demand that any recovery you obtain from your family law attorney be turned over to the bankruptcy estate.Hope this helps. NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation. If you need to contact me again, please put my user id at the beginning of your question ("ToCustomerquot;), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!
Dear Socrates,Criminal Restitution is exempt as an asset in bankruptsy (just like social securitY) Did you read this she is not my family law attorney for over a year. The Dept of Real Estate says "criminal restitution is for victims of crime. She cannot claim post -judgement money. The DA was expecting all the funds to be split .50/50 as per CA law. But no one expected a recovery he was expected to have a sentence in state prison for grand theft. She filed the lein long after she was discharged and misguided the court that all funds should go to her account while telling me she could no longer have control over any money. Do you know a litttle more about BK law or post BK money.
Perhaps I am not entirely understanding your allegations. You say that criminal restitution is exempt in bankruptcy, the same as social security. I am unaware of (or perhaps I am too old to recall) any statute or case law in support of this legal position. Can you please provide a citation to authority, so that I can refresh my recollection. Once you do, I will be happy to rework the legal logic of your facts, to ensure that I haven't missed something important.Thanks in advance.41089.0601997338
It appears that you have chosen to obtain a refund, rather than continue the conversation. I really intended no disrespect with my request. If you took it to mean that I'm not competent to answer your question, then all I can say is that I would have preferred that you prove the premise of your position, even though it may have proved me wrong -- because, then I would both learn something important and I would have possibly been able to assist you further. In the event you do return, I shall be happy to try to assist you further. Best wishes with your quest for justice.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).