How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask A.J. Your Own Question

A.J.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4255
Experience:  Experienced consumer bankruptcy attorney.
14926557
Type Your Bankruptcy Law Question Here...
A.J. is online now
A new question is answered every 9 seconds

my ch. 13 bk was just dismissed, mainly because my lawyers

Customer Question

my ch. 13 bk was just dismissed, mainly because my lawyer's office didn't serve my creditor's, and I just found out he's been disbarred. Aside from any possibility I have of recovering any of the $5,000 I paid them, I need to find out immediately if and how I can file a motion to get it reinstated?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney.

Yes, this can be done. Here's a sample motion you can use as a template: http://www.qslifetimestories.com/upload/DEBTOR’S%20MOTION%20TO%20VACATE%20DISMISSAL%20ORDER%20AND%20REINSTATE%20CHAPTER%2013%20CASE%20PURSUANT%20TO%20FEDERAL%20RULE%20OF%20BANKRUPTCY.pdf


Customer: replied 1 year ago.

I don't see how this could be a template for me, it's more of a case study, which could possibly have some anecdotal value; however, I need specific information about filing a motion to reinstate my case in LA county. I also wanted to know about what steps I can take to begin any claims I have for the $5,000 legal fees I paid to legal counsel, now disbarred.


Finally, I see that you offer a trial period of one week to ask questions, which I would have found very helpful since I've never used this site before, but that was not even mentioned until after I gave my credit card #XXXXX I really don't feel that the 1 link I was sent, or the way this process is handled, could possibly be valued at $30.

Expert:  Roger replied 1 year ago.
The link is a motion that was filed to reinstate a case in your state. The facts would be different, but the law that applies would be the same.

Unfortunately, there are no forms out there. Also, we can't tell you what to do. Instead, all we can so is provide information and the applicable rules.

I'll opt out and allow other experts to assist if they can add anything to the posts.
Customer: replied 1 year ago.


Ok, I will list the information that I would need to get from you, so please let me know asap if this is the kind of info you can give me:


 


if I'm allowed to refile for Chapter 13 in LA county, or is it possible to file a motion for my case that was dismissed to be reinstated?


 


What recourse do I have to recover the $5,000 fee I paid to my bankruptcy attorney, who has been disbarred. They never served my creditors properly, which led to my ch. 13 being dismissed.


 


What procedures for a loan modification are available to me, so I can pursue that as well as trying for the bankruptcy protection.


 


Thank you.

Customer: replied 1 year ago.
Relist: Incomplete answer.
I asked a question on Friday, and still don't know if the same lawyer was going to answer, or if someone else could help me. He only said he would "opt-out", but I was expecting that someone would try to answer my questions from Friday afternoon...please let me know.
Expert:  A.J. replied 1 year ago.
Hello, and thank you for contacting Just Answer.

Before answering, I just want to confirm that you are still looking for an answer to your question, rather than a refund. I am happy to answer to the best of my abilities, but just want to confirm that you are still looking for an answer before I do so.
Customer: replied 1 year ago.


Yes, I would like to be able to use this service, I just want to make sure that I'll be able to get specific info when I need it, not just reference leads or general legal terms.

Expert:  A.J. replied 1 year ago.
I can certainly provide specific information, but please remember that I cannot provide direct legal advice, as this is an informational site, and ultimtately legal advice is for an attorney in person and in confidence to provide.

What I can do is provide as specifc information as possible, without crossing the line in to legal advice (ie, do this, don't do this). Give me a few mintues to research your question, and I should have an answer for you.
Customer: replied 1 year ago.


That's no problem, I appreciate whatever procedural help you can offer for the concerns that I listed...thank you.

Expert:  A.J. replied 1 year ago.
Ok, I am actually going to address these in reverse order, because pursuing the money paid to your attorney is probably the procedurally simpler of the two issues you asked about.

If the attorney has already been permanently disbarred, then filing a complaint with the California State Bar Association probably will not get you anywhere, as the attorney has already been disciplined by the bar to the extent they can be. As such, in order to recover money that you believe is owed by anyone, including an attorney who failed to provide services paid for, would be to institute and pursue a lawsuit against them.

For a suit for $5000, you would have the option of filing in small claims court, which is much simpler procedurally and generally also less expensive and time consuming. A small claims suit is initiated by filing a summons (summoning the defendant to court) and a complaint (listing the allegations against the defendant and requesting a specific dollar amount) with the county court for the county in which the defendant resides or in which the breach occurred (generally the same). While you certainly can retain an attorney to assist in the filing of a claim in small claims, the state courts website does have a very good "Self-help" website that provides instructions on how and where to file, as well as the proper forms, including the summons and complaint at:

http://www.courts.ca.gov/selfhelp-smallclaims.htm

As I said, California has one of the better self-help systems that I have seen. So, that is your recourse for recovering money paid to an attorney who has not performed the services, where the attorney has already been disciplined to the extent that they can be by the Bar Association.

Now, as for the chapter 13 bankruptcy, a chapter 13 can be reinstated, but generally it is a good idea to (a) cure any deficiencies prior to filing the motion and (b) talk with the bankruptcy trustee to see if they will oppose reinstatement. Now, as for timeframes, that can be a little tricky. The Federal Rules of Bankruptcy Procedure 9023 does require that a motion to reconsider a judgment of the court must be done within 10 days of the order. However, the time is extended to a "Reasonable time" (not defined exactly) where the need for reconsideration is due to "(1) mistake, inadvertence, surprise, or excusable neglect". (combination of Federal Rule of Civil Procedure 60(b) and Federal Rule of Bankruptcy Procedure 9024). Theoretically, this should apply to you as the mistake was counsel's and this was a surprise to you, but I cannot make any promises that the court will ultimately allow it. Now, as for the form of the motion and how to file, that depends on whether or not you file or you hire a new attorney to file (which would be my strongest suggestion). If an attorney files, they would draft it for you and file it online through the bankruptcy court's online filing system. If, however, you choose to file it on your own, it would be filed in person with the clerk of court for the bankruptcy court in which the original case was filed. You would then be responsible for serving (mailing) a copy of the motion, as well as a notice of the time and date for a hearing on the motion (which should be assigned when you file) to each creditor and to the bankruptcy trustee.

The form of the motion is relatively simple, although it must be drafted individually, there is generally not a form that can be filed out. It appears as if the previous professional provided you with a sample form, so I apologize if I am providing the same one, but a sample for the Northern District of California can be found HERE. As you will see, I am providing this not so that you can copy it word for word, but so that you can see the format that a motion to reinstate should take. You will have to replace the arguments stated in this example with your own (incompetence of counsel, etc), as the situation will be different than yours, but the sample provided demonstrates the FORMAT of a motion to reinstate.

So, to summarize

(1) Collecting money owed by an attorney who has failed to provide agreed services can be done by filing suit against the attorney to collect, and $5000 can be done in small claims court.

(2) A motion to reinstate can be filed by an attorney online or by an individual debtor in person at the clerk of court's office for the court in which the case is filed. The motion should follow a specific format and the example I provided is an example of format, the specific facts of your case will need to be substituted. Arguably, the 10 day time limit to file should not apply where the cause of the need to reconsider the order dismissing is reasonable mistake caused by counsel, not the debtor, but to be on the safe should, it should be filed as soon as possible, and preferrably by a competent attorney. Should you choose to seek another attorney asap, the state bar has a referral service at:

http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

I hope this information helps, and let me know if you have any further questions. Otherwise, please remember to RATE my answer AT LEAST 3 out of 5 so that I can receive credit for my work.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4255
Experience: Experienced consumer bankruptcy attorney.
A.J. and 3 other Bankruptcy Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
< Last | Next >
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
  • http://ww2.justanswer.com/uploads/TL/tleeders/2012-6-13_204815_TSL1.64x64.jpg Terry L.'s Avatar

    Terry L.

    Attorney

    Satisfied Customers:

    2204
    Better Business Bur 15yrs bankruptcy experience. Chicago Bar
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    950
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/CO/cortrightlaw/2011-12-5_4117_Kevin.64x64.JPG cortrightlaw's Avatar

    cortrightlaw

    Attorney

    Satisfied Customers:

    490
    Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
  • http://ww2.justanswer.com/uploads/Jay1968/2006-12-03_004423_JoeRossPhoto.jpg JoeLawyer's Avatar

    JoeLawyer

    Attorney

    Satisfied Customers:

    376
    Attorney in the practice of Bankruptcy Law since 1996
  • http://ww2.justanswer.com/uploads/DY/Dylatess/2012-9-11_1968_BHBTemplePhoto.64x64.jpg dylatess's Avatar

    dylatess

    Attorney

    Satisfied Customers:

    370
    35 plus years of experience specializing in bankruptcy law
  • http://ww2.justanswer.com/uploads/US/USLawAnswers/2012-9-20_23143_20090105211638Headshot3b.64x64.jpg Brent Blanchard's Avatar

    Brent Blanchard

    Bankruptcy Attorney

    Satisfied Customers:

    315
    Twelve years experience in all aspects of debtor & creditor BK.